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July 16, 2014

Agency toughens protections for pregnant workers

WASHINGTON — Pregnant women have new protections against on-the-job discrimination.

The Equal Employment Opportunity Commission has updated 30-year-old guidelines to make clear that any form of workplace discrimination or harassment against pregnant workers by employers is a form of sex discrimination and illegal.

“Despite much progress, we continue to see a significant number of charges alleging pregnancy discrimination, and our investigations have revealed the persistence of overt pregnancy discrimination, as well as the emergence of more subtle discriminatory practices,” EEOC Chairwoman Jacqueline A. Berrien said in a statement.

The guidelines prohibit employers from forcing pregnant workers to take leave and acknowledge that “employers may have to provide light duty for pregnant workers.” After childbirth, lactation is now covered as a pregnancy-related medical condition.

It’s not just women who will benefit.

The guidelines say that when it comes to parental leave, “similarly situated” men and women must be treated on the same terms.

The update comes two weeks after the Supreme Court agreed to consider a case involving the EEOC’s duty to try to settle charges of job discrimination before filing lawsuits against employers.

The issue has gained increasing attention and has vexed business groups as the Obama administration ratchets up its enforcement of the nation’s anti-discrimination laws.

The latest EEOC data shows a 46 percent increase in pregnancy-related complaints to the EEOC from 1997 to 2011.

In its report, the agency cites specific, real-life examples of what it considers illegal discrimination. It used only first names and did not reveal locations, occupations or employers. Among them:

— Three months after “Maria” told her supervisor that she was pregnant, she was absent a few days due to an illness unrelated to her pregnancy. When she returned to work, “her supervisor said her body was trying to tell her something” and she was let go.

— Shortly after Teresa informed her supervisor of her pregnancy, “he met with her to discussed alleged performance problems.” Even though Teresa had consistently received outstanding performance reviews during her eight years of employment with the company, she was discharged.

— Birah, a woman from Nigeria, claimed that when she was visibly pregnant with her second child, “her supervisors increased her workload and shortened her deadlines so she could not complete her assignments , ostracized her, repeatedly excluded her from meetings to which she should have been invited, reprimanded here for failing to show up for work due to snow when others were not reprimanded, and subjected her to profanity.”

The guidelines, which had last been updated in 1983, spell out for the first time how the Americans With Disabilities Act might apply to pregnant workers. And it emphasizes that any discrimination against female workers based on past or prospective future pregnancies is also illegal.

Protections for pregnant women vary widely around the globe — as does enforcement. Sweden bans discrimination because of pregnancy and requires companies employing more than 25 people to help both men and women combine work and parenting. Egyptian laws give pregnant women the right to work fewer hours and three months’ paid leave after birth — requirements women’s rights groups say prompt employers to hire men. And in Mexico, laws prohibit discrimination against pregnant women, but there is little enforcement by the government.

The American Civil Liberties Union welcomed the updated U.S. guidelines, which were approved Monday on a 3-2 partisan-line vote by the Democratic-led commission.

“Pregnancy is not a justification for excluding women from jobs that they are qualified to perform, and it cannot be a basis for denying employment or treating women less favorably than co-workers,” said Laura W. Murphy, director of the ACLU’s Washington Legislative Office.

Debra L. Ness, president of the National Partnership for Women and Families, called the new guidelines “a powerful tool in the effort to eradicate the unlawful and unequal treatment of pregnant women in the workplace.”

Joan C. Williams, a law professor at the University of California’s Hastings School of Law in San Francisco who testified before the EEOC on pregnancy discrimination, said it is difficult to quantify how many women would be helped by the agency’s stronger stance. “I think it will make a really big difference,” she said. “This is also the direction the courts have begun to go in, and that’s why the EEOC said, ‘Yeah, that makes sense.”’   

Williams, who co-authored a 2011 study called “Pregnant, Poor and Fired,” said the main impact may by erecting “very, very, simple and very, very common-sense” guideposts for EEOC investigators, as well as providing strong ammunition for employment lawyers  whose clients are victims of such discrimination.

Commissioners Constance Barker and Victoria Lipnic dissented from the decision, saying the commission was overstepping its authority. Both were first appointed by Republican President George W. Bush.

The U.S. Chamber of Commerce has been critical of EEOC decisions during the Obama years, and the EEOC matter was no exception.  Randel Johnson, the chamber’s vice president for labor issues, called it “an agency which often advances questionable enforcement tactics and legal theories.”

The Senate is considering a closely related issue: a Democratic-sponsored bill aiming to circumvent the Supreme Court’s June 30 “Hobby Lobby” decision to allow private companies to opt out of covering certain kinds of birth control. An attempt by sponsors to force the measure to a vote is expected Wednesday. However, it seems unlikely to draw the 60 votes needed to advance the legislation.

Democrats are seeking to turn the battle into a women’s rights issue that can help them at the ballot box in November.

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