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County employers and the Pregnancy Discrimination Act of 1978

By JONATHAN GREER, AAC General Counsel & MARK WHITMORE, AAC Chief Counsel

crimination Act of 1978 (PDA) was adopted by Congress to make clear that discrimination based on pregnancy, childbirth or related medical conditions is a form of sex discrimination prohibited by Title VII of the Civil Rights Act of 1964 (Title VII).


Guidance on Pregnancy Discrimination and Related Issues (Guid- ance) released on July 14, 2014, and available at: Te guidance includes discussions of: • When employer actions may constitute unlawful discrimination on the basis of pregnancy, childbirth or related medical conditions in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended by the Pregnancy Discrimination Act of 1978 (PDA); • The obligation of employers under the PDA to provide preg- nant workers equal access to benefits of employment such as leave, light duty, and health benefits; and • How Title I of the Americans with Disabilities Act (ADA), which went into effect over a decade after the PDA and was amended in 2008 to broaden the definition of disability, applies to individuals with pregnancy-related impairments. Te PDA clarifies that discrimination based on pregnancy, childbirth or related medical conditions is a prohibited form of sex discrimination. It requires that employers treat women affected by pregnancy or related medical conditions the same way they treat non-pregnant applicants or employees who are similar in their abil- ity or inability to work. Title I of the ADA prohibits employment discrimination on the

basis of disability and requires covered employers to provide rea- sonable accommodations to the known limitations of otherwise qualified employees and applicants for employment. Although pregnancy itself is not a disability, impairments related to preg- nancy can be disabilities if they substantially limit one or more major life activities or substantially limited major life activities in the past. Te ADA also covers pregnant workers who are regarded as having disabilities. Both the PDA and the ADA apply to county government employers with 15 or more employees.


1. What workplace actions are prohibited under the PDA? Under the PDA, an employer cannot fire, refuse to hire, demote or take any other adverse action against a woman if pregnancy, childbirth or a related medical condition was a motivating factor in the adverse employment action. Te PDA prohibits discrimination with respect to all aspects of employment, including pay, job as- signments, promotions, layoffs, training and fringe benefits (such

12 Tese Questions and Answers address the EEOC Enforcement

s AAC celebrates staff member Whitney Barket’s news that she is pregnant with twins, we thought it might be a good time to review some legal information with regards to expecting employees. Te Pregnancy Dis-

as leave and health insurance). 2. Does the PDA protect individuals who are not currently

pregnant based on their ability or intention to become pregnant? Yes. Te PDA’s protection extends to differential treatment based on an employee’s fertility or childbearing capacity. Tus sex-specific policies restricting women from certain jobs based on childbearing capacity, such as those banning fertile women from jobs with exposure to harmful chemicals, are generally prohibited. An employer’s concern about risks to a pregnant employee or her fetus will rarely, if ever, justify such restrictions. Sex-specific job restrictions can only be justified if the employer can show that lack of childbearing capacity is a bona fide occupational qualification (BFOQ), that is, reasonably necessary to the normal operation of the business. (See also Question 7, below.) An employer is also prohibited from discriminating against an employee because she has stated that she intends to become pregnant. Tus, demoting an employee with a good performance record two weeks after she informed her manager that she was trying to become pregnant would constitute evidence of preg- nancy discrimination.

3. May an employer ask an employee or applicant whether she is pregnant or if she intends to become pregnant soon? Although Title VII does not prohibit employers from asking ap- plicants or employees about gender-related characteristics such as pregnancy, such questions are generally discouraged. Te EEOC will consider the fact that an employer has asked such a question when evaluating a charge alleging pregnancy discrimination. Ad- verse decisions relating to hiring, assignments or promotion that are based on an employer’s assumptions or stereotypes about preg- nant workers’ attendance, schedules, physical ability to work or commitment to their jobs are unlawful.

4. Is an employee or applicant protected from discrimination because of her past pregnancy? Yes. An employee or applicant may not be subjected to discrimi- nation because of a past pregnancy, childbirth or related medical condition. For example, an employer would violate the PDA by terminating an employee shortly after she returns from medically- related pregnancy leave following the birth of her child if the em- ployee’s pregnancy is the reason for the termination. Close prox- imity between the employee’s return to work and the employer’s decision to terminate her, coupled with an explanation for the ter- mination that is not believable (e.g., unsubstantiated performance problems by an employee who has always been a good performer), would constitute evidence of pregnancy discrimination.

5. What are examples of medical conditions related to preg- nancy or childbirth? Medical conditions related to pregnancy may include symptoms such as back pain; disorders such as preeclampsia (pregnancy-in- duced high blood pressure) and gestational diabetes; complications


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