You don’t need to be a lawyer or a HR specialist to know that, as a private employer with fifteen or more employees, you cannot make hiring, firing, and other employment decisions based on an employee’s pregnancy.  There are, however, other less obvious, but equally important, things to know about the Pregnancy Discrimination Act of 1978 (the “PDA”), which amended Title VII of the Civil Rights Act of 1964 (“Title VII”):

1. According to the Equal Employment Opportunity Commission’s (“EEOC”) current guidelines, an employer’s health insurance plan must cover prescription contraceptives on the same basis as prescription drugs, devices, and services that are used to prevent the occurrence of medical conditions other than pregnancy.
   
   For example, if an employer’s health insurance plan covers preventive care for medical conditions other than pregnancy, such as vaccinations, physical examinations, prescription drugs that prevent high blood pressure or to lower cholesterol levels, and/or preventive dental care, then prescription contraceptives also must be covered.  Of course, the Supreme Court recently ruled that the Patient Protection and Affordable Care Act’s (“Obamacare”) contraceptive mandate violated the Religious Freedom Restoration Act (the “RFRA”) as applied to closely-held family corporations whose owners had religious objections to providing certain types of contraceptives. See Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751 (2014).   It is an open question, however, whether such employers could successfully maintain whether they are exempt from Title VII’s requirements under the RFRA (or the First Amendment’s Free Exercise Clause).

2. Employers must treat female employees who are lactating or breastfeeding the same as other employees with similarly limiting medical conditions.The PDA prohibits discrimination not just based on pregnancy but also childbirth and related medical conditions, and the EEOC has specifically identified lactation as a related medical condition.  Thus, if an employer allows employees to change their schedules or use sick leave for routine doctor appointments and to address non-incapacitating medical conditions, then it must allow female employees to change their schedules or use sick leave for lactation-related needs under similar circumstances.  Also, aside from protections under Title VII, female employees who are breastfeeding have rights under other laws, including a provision of the Patient Protection and Affordable Care Act that requires employers to provide reasonable break time and a private place for hourly employees who are breastfeeding to express milk.

3. As it currently stands, pregnant employees may be entitled to workplace adjustments similar to reasonable accommodations that are provided to individuals with disabilities under the Americans with Disabilities Act (the “ADA”) even if the pregnancy-related condition is not itself a disability within the meaning of the ADA. Under the EEOC’s current enforcement guidance for the PDA, an employer is obligated to treat a pregnant employee temporarily unable to perform the functions of her job the same as it treats other employees similarly unable to perform their jobs.   For example, an employee who, because of a back impairment, has a 20-pound lifting restriction that lasts for several months would be considered to be disabled under the ADA and would be entitled to reasonable accommodation, absent undue hardship. According to the EEOC, a woman with a similar restriction due to her pregnancy would be entitled to the same accommodation, and an employer’s failure to provide such an accommodation constitutes pregnancy discrimination.  Similarly, pregnant employees may require other kinds of workplace adjustments similar to accommodations provided to individuals with disabilities, such as permission to take more frequent breaks and to keep a water bottle at a workstation where an employer generally prohibits this practice (an accommodation that an employer might provide to someone who takes medication to combat the effects of dry mouth caused by certain psychiatric medications),or permission to use a stool to carry out job functions generally performed while standing (an accommodation that might be provided to an employee with a back or leg impairment that limits standing).This may not be the case for much longer, however.  In 2013, the United States Court of Appeals for the Fourth Circuit held the PDA does not require an employer that provides accommodations to non-pregnant employees with work limitations to provide the same accommodations to pregnant employees who are similar in their ability or inability to work.  See Young v. United Parcel Serv., Inc., 707 F.3d 437 (4th Cir. 2013).  The Supreme Court subsequently granted certiorari, and will make a decision by October.  See134 S. Ct. 2898 (2014).

4. To the extent an employer offers parental leave to bond with and/or care for the baby (as opposed to leave related to pregnancy or childbirth), such leave must be available to men and women equally.
   
   For the purposes of Title VII, parental leave is different than pregnancy-related medical leave.  Leave related to pregnancy, childbirth, or related medical conditions can be limited to women affected by those conditions.  Parental leave, however, must be provided to similarly-situated men and women on the same terms.  If, for example, an employer extends leave to new mothers beyond the period of recuperation from childbirth, e.g., to provide mothers time to bond with and/or care for the baby, it cannot lawfully fail to provide an equivalent amount of leave to new fathers for the same purpose.

5. Employer defenses to disparate treatment under the PDA—i.e., where pregnancy, childbirth or a related medical condition is a motivating factor in an adverse employment action—are limited.
   
   In some instances, employers may claim that excluding pregnant or fertile women from certain jobs is lawful because non-pregnancy is a bona fide occupational qualification (“BFOQ”).  The defense, however, is an extremely narrow exception to the general prohibition against gender-based discrimination.  The defense cannot be based on fears of danger to the employee or her fetus, fears of potential tort liability, assumptions and stereotypes about the employment characteristics of pregnant women such as their turnover rate, or customer preference.  An employer who seeks to prove a BFOQ must show that pregnancy actually interferes with a female employee’s ability to perform the job, and the defense must be based on objective, verifiable skills required by the job rather than vague, subjective standards.  Only rarely have employers been able to meet this standard.

Ichter Davis not only knows this area of the law, we have tried cases involving claims of pregnancy discrimination and similar issues.  During the summer of 2012, Cary Ichter and William Daniel Davis successfully defended one of Ichter Thomas’ clients against claims of pregnancy discrimination and violations of the Family Medical Leave Act.

If you’d like help with developing and implementing best practices under the PDA and related employment laws like the ADA and the Family Medical Leave Act or are facing litigation involving allegations of pregnancy discrimination, we are happy to help.  Give the experienced attorneys at Ichter Davis LLC a call at 404-869-7600.