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Employment Law in California

The EEOC’s New Guidelines for Pregnancy Discrimination: What This Means For You

EEOC seal           In a recent opinion piece in the Wall Street Journal, one author made clear his views on the Equal Employment Opportunity Commission’s new guidelines for pregnancy discrimination laws. Suffice to say, the writer of said article found little reason for the new legislation. Instead, he claimed that the new changes were simply another “radical legal interpretation” that granted protections to pregnant women that should be reserved for the “truly disabled”.

Notably, the writer did not address the symptoms of pregnancy, which can include everything from morning sickness and lactation to pregnancy-related sciatica, gestational diabetes, along with many others. Neither did he address the fact that, moreover, these impairments will only fall under the EEOC interpretation of disabilities “if they substantially limit one or more major life activities or substantially limited major life activities in the past,” a description that is the very definition of disability itself.

The writer went on to assert that pregnancy is already protected under federal law under the 1964 Civil Rights Act, which protects workers from discrimination on the basis of “race, color, religion, sex, or national origin.” The law was then amended in 1978 by the Pregnancy Discrimination Act to extend its reach to pregnant women. He did not address the fact that the Pregnancy Discrimination Act is only two sentences long, nor that the law has since not been updated for more than 30 years.

On top of all this, over those 30 years more women have moved into the workplace than ever before. Today, 7 out of 10 mothers work and more of them than ever are the sole or primary financial support for their families. In fact, over two-thirds of women work during their first pregnancy. Despite these facts, the EEOC reports that pregnancy discrimination affects nearly every industry in every geographic region of the nation with pregnancy discrimination complaints rising steadily in recent decades.

Women continue to be discriminated against in the hiring, firing, and promotion process based not only on current pregnancy, but also past pregnancies and even their potential to become pregnant. Particularly offensive examples of such situations include a sports bar that did not allow pregnant employees to work on Sundays because “men didn’t want to see pregnant women” while they watched football and an executive who was sidelined for merely saying that she might get pregnant. Most recently, Lyndsay Kirkham, a Toronto-based editor and writer, sparked outcries on Twitter when she live-tweeted snippets of IBM executives’ lunch conversations about how they prefer not to hire young women because they will get pregnant.

The new guidelines not only look to address these situations, but also prohibit employers from requiring a female worker to take leave because she is pregnant as long as she is able to perform her job, a factor that is especially relevant given that pregnancy discrimination most impacts women in non-traditional and low-wage sector jobs. Instead, it recommends that “reasonable accommodations” be made for pregnant women. Such a clause looks to prevent cases such as that of a female employee who was fired for insubordination for carrying a doctor-recommended water bottle to prevent pregnancy-related bladder infection, or an airport security worker who was required to wear a bow tie that began to choke her as her pregnancy went on. Other examples of “reasonable accommodations” include redistributing marginal or nonessential job functions, altering how a function is performed (e.g. another worker does heavy lifting), or modifying equipment, such as allowing an employee a stool, or water.

The EEOC guidelines seek merely to ensure that pregnant women do not receive fewer benefits or accommodations than would any other short-term disabled employees, in accordance with the Americans with Disabilities Act. The writer of the Wall Street Journal’s claims that the EEOC guidance is either “a launching pad for trial lawyers, a primary source of grateful Democratic campaign money” or merely “another politicized front in the war on women” notwithstanding, the guidelines, should they be enforced by the courts, will hopefully help to ensure that America’s women and pregnant workers are able to defend their rights to equally opportunities for reasonably safe and just employment.

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