By Anne-Marie L. Storey, Esq.

On July   14, the EEOC issued an Enforcement Guidance addressing pregnancy   discrimination under the Pregnancy Discrimination Act and the ADA as they   apply to pregnant employees.

The   Pregnancy Discrimination Act extends Title VII to prohibit an employer from   discriminating on the basis of pregnancy, childbirth or related medical   conditions and requires that women “affected by” pregnancy, childbirth or   related medical conditions be treated the same as other employees “not so   affected but similar in their ability or inability to work”.     Since it is an extension of Title VII, it would only apply to employers with   15 or more employees (however, all Maine employers are also covered by the   Maine Human Rights Act, which prohibits discrimination on the basis of   disability, including pregnancy and related conditions).  In addition,   issues related to pregnancy may be the subject of the ADA/MHRA as well.

Among the   many issues covered in the Guidance is the topic of light duty for pregnant   employees.  The Guidance emphasizes that a pregnant employee can   establish a violation of the PDA by showing that she was denied light duty or   other accommodation granted to other employees who were similar in their   inability to work.  As an example, the Guidance poses the   following: 

An employer has a   policy or practice of providing light duty, subject to availability, for any   employee who cannot perform one or more job duties for up to 90 days due to   injury, illness, or a condition that would be a disability under the ADA. An   employee requests a light duty assignment for a 20-pound lifting restriction   related to her pregnancy. The employer denies the light duty request,   claiming that pregnancy itself does not constitute an injury, illness, or   disability, and that the employee has not provided any evidence that the   restriction is the result of a pregnancy-related impairment that constitutes   a disability under the ADA. The employer has violated the PDA because the   employer’s policy treats pregnant employees differently from other employees   similar in their ability or inability to work.

The Guidance confirms, however, that the   PDA only requires benefits for pregnant employees on the same terms that it   offers benefits to other workers similar in their ability or inability to   work.   So, if a neutral light duty policy has restrictions on its   availability, such as the duration of light duty assignments, the employer   may lawfully apply those restrictions to pregnant workers, as long as it also   applies the same restrictions to other workers similar in their ability or   inability to work.

In   another section, the Guidance confirms that an employer cannot require a   pregnant employee to take leave just because she is pregnant, as long as she   is able to perform her job.  Forcing leave in that situation would   constitute a violation of Title VII even if the employer believes it is   acting in the employee’s best interest.   As an aside, that would   also include making unsolicited or unwanted changes to an employee’s job just   because she is pregnant.  For instance, an employer should not assume   that an employee who works on an assembly line in a standing position needs   to sit just because she is pregnant if she has not asked for such an   accommodation.

The   Guidance is well worth a read by all employers.  It can be found at   Employers should   also remember that the FMLA (state and federal) will also come into play in   the analysis related to leave for pregnancy and related issues.

These materials have been prepared by Rudman   Winchell for educational purposes only.  They should not be considered   legal advice. The transmission of this information to you is not intended to   create a lawyer-client relationship. Readers should not act upon this   information without seeking professional counsel.  You should not send any   confidential or private information to Rudman Winchell until a formal   attorney-client relationship has been established, in writing.

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