New EEOC Guidance on Pregnancy Discrimination

The Equal Employment Opportunity Commission (EEOC) has released new reminders and enforcement guidance on the topic of pregnancy discrimination, and all employers must take note.

And this new guidance comes just in time! Pregnancy discrimination claims are on the rise across the nation, and the issues involved are complex and confusing. In recent news, you have probably heard of the Supreme Court’s recent finding in favor of Hobby Lobby, stating that it’s a violation of the Religious Freedom Restoration Act (RFRA) to require employers to provide no-cost contraception access for female employees. Sound like a straightforward judicial decision? It’s not.

The trouble is, the implications of this case are widely misunderstood. The recent Supreme Court finding does not touch upon nor affect in any way the protections afforded to all women under Title VII of the Civil Rights Act, which prohibits employment discrimination based on sex as well as race, color, religion, and national origin.*

So at this time, “because prescription contraceptives are available only for women, employer’s explicit refusal to offer insurance coverage for them [contraceptives] is, by definition, a sex-based exclusion.” (It’s discussed in more detail here.)

That’s only one policy point…there are many others that you have to get right, because you don’t want to risk the wrath of the EEOC! Here are a few more:

Did you know…?

• Pregnancy discrimination protections apply even before pregnancy (when an employee is trying to become pregnant).
• These same protections also apply after pregnancy, for conditions or situations related to the pregnancy.
• Small employers may also be subject to these rules. Even states with fewer pregnancy protection requirements for small employers (fewer than 15 employees) usually look to federal rulings for interpretive guidance!
• According to recent rulings, and as we stated above, the refusal to provide contraceptive coverage actually constitutes sex discrimination.

Again, these are just a few of the areas you need to be careful of, so when it comes to your protections against pregnancy discrimination claims, please find out if you’re getting things right before you learn the hard way that you’ve gotten them wrong. And make sure to check out the EEOC’s own Pregnancy Discrimination Fact Sheet.

Have further questions? Doctors and their office managers can call CEDR at 866-414-6056.

Friendly Disclaimer: This information is general in nature, and is not intended to replace good counsel about a specific issue with either your attorney or your favorite HR Sherpa.

*Want more detail? According to the EEOC: “The Supreme Court did not reach the question whether owners of such businesses can assert that the contraceptive mandate violates their rights under the Constitution’s Free Exercise Clause. This enforcement guidance explains Title VII’s prohibition of pregnancy discrimination; it does not address whether certain employers might be exempt from Title VII’s requirements under the First Amendment or the RFRA.” (See EEOC Enforcement Guidance: Pregnancy Discrimination and Related Issues, fn 42)