In the first comprehensive update since 1983, the EEOC has issued substantial new guidance on pregnancy discrimination; discussing the permissibility (and impermissibility) of employer practices towards pregnant employees. The new guidance interprets the tenets of the Pregnancy Discrimination Act of 1978 (PDA), Title VII of the Civil Rights Act of 1964 (Title VII), even to the extent of addressing the application of the Americans with Disabilities Act (ADA) as amended in 2008 as ADAAA, under which pregnant workers are to be treated on par with injured workers.
The new guidance was prompted by the new Affordable Care Act (ACA) and the growing number of pregnancy discrimination cases. Although the guidance is not binding law, it reminds employers to acquaint themselves with their requirements under the Pregnancy Discrimination Act, as they apply to all pregnant workers – whether temporary or permanent:
When dealing with temporary workers, the concept of co-employment applies. Both the staffing agency serving as employer of record and the ‘host employer’ who retained the services of the staffing agency are responsible for the welfare of all workers. Both parties must take steps to comply with the Pregnancy Discrimination Act.
Employers should review any applicable policies, procedures, practices, and training programs in light of the EEOC’s guidance. The Pregnancy Discrimination Act has implications for general employment practices and policies; hiring, promotion, and other employment decisions; leave and other fringe benefits; terms and conditions of employment; and reasonable accommodations. The most important thing to remember – when determining whether the actions toward a pregnant worker are legal and reasonable, the courts consider whether that same action would be taken in the event of any other documented medical condition. For more detailed guidance, the EEOC’s website provides other resources like Enforcement Guidance, Q&A document, and Fact Sheet.
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