It's a good news/bad news story: The nation's birth rate has rebounded after a drop that followed the 2008 financial crisis. The bad news is pregnancy discrimination charges are also on the rise. This is a touchy area and one that employers need to keep a close eye on. This article describes new standards that clarify what's discriminatory, and what isn't.

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Avoid Giving Birth
to a Pregnancy
Discrimination
Charge

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Discriminating against pregnant women with respect to employment is
illegal. This includes any aspect of the employment relationship — including
hiring, firing, pay, job assignments, promotions, layoff, training, employee
benefits, and any other term or condition of employment. While this is not
new, the law is evolving.
Pregnancy discrimination has been banned, in varying degrees, since the U.S.
Civil Rights Act of 1964. In 1978, that law's provisions relevant to pregnancy
were expanded by the Pregnancy Discrimination Act (PDA). Before the PDA,
employers were able to deny health benefits to pregnant women. In 2008, the
PDA was updated to make it easier to show that medical conditions related to
pregnancy can be protected under the Americans with Disabilities Act.
In 2014, the U.S. Supreme Court handed down a major decision in the case
of Young v. UPS, which led to new guidance on this important issue. The
decision forced the Equal Employment Opportunity Commission (EEOC) to
reissue its own standards on discrimination, for the benefit of employers and
of EEOC enforcement officials.

3. Increase in EEOC Cases
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Given the long parade of laws and court rulings relating to pregnancy
discrimination, it's perhaps not surprising that the EEOC gets thousands of
complaints. In fiscal year 2015 the agency received 3,543 such complaints, up
4% from 2014.
More than half of those cases lacked "reasonable cause," and only about 12%
resulted in financial settlements. Still, the average settlement in 2015 was
$37,000, so being clear on the latest legal and regulatory standards for
pregnancy discrimination is important.

4. 10 Questions (and Answers)
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Here, in Q&A format, are 10 highlights of the latest EEOC guidance.
1. What workplace actions are prohibited under the PDA?
The EEOC's answer is expansive: You 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."
2. May an employer ask an employee or applicant whether she's pregnant or
intends to become pregnant soon?
Technically, yes. However, the EEOC warns that any "adverse" action
"based on an employer's assumptions or stereotypes about pregnant
workers' attendance, schedules, physical ability to work or commitment
to their jobs, is unlawful." (Therefore, it's much better not to ask.)

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3. Is an employee or applicant protected from discrimination because of her
past pregnancy?
Yes. For example, if an employee returning from a "medically related
pregnancy leave" (such as back pain or other complications requiring bed
rest) was terminated, that would not fly. "Close proximity between the
employee's return to work and the employer's decision to terminate her,
coupled with an explanation for the termination that is not believable"
would be considered evidence of pregnancy discrimination.
4. How are male employees impacted by pregnancy-related anti-
discrimination rules?
"Although leave related to pregnancy, childbirth, or related conditions can
be limited to women affected by those conditions, if an employer
provides parental leave, it must be provided to similarly situated men and
women on the same terms."

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5. Is it unlawful to take any adverse action out of concern for the health and
safety of the pregnant employee?
Yes, if it stems from "an employer's assumptions or stereotypes about
pregnant workers' attendance schedules, physical ability to work, or
commitment to their jobs."
6. When can you require a pregnant employee to take leave?
Basically, never — even if you believe you're doing her a favor. "Never"
includes asking a pregnant employee who has taken a pregnancy-related
leave not to return to work until after she has given birth.

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7. Can pregnant employees be covered under the Americans with Disabilities
Act?
Yes, if they have "pregnancy-related impairments," that is, those that
"substantially limit one or more major life activities." Such activities
include walking, standing, lifting, and "major bodily functions such as the
musculoskeletal, neurological, cardiovascular, circulatory, endocrine, and
reproductive functions."
8. Do you have to accommodate a pregnant employee with a pregnancy-
related impairment upon request?
Yes, as with other ADA cases, you must make a "reasonable
accommodation" unless it will cause you "undue hardship" – defined as
"an action requiring significant difficulty or expense."

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9. What is a reasonable accommodation?
It's a change in the way an employee's job is performed "that enables an
individual with a disability to apply for a job, perform a job's essential
functions, or enjoy equal benefits or privileges of employment."
9. What are some examples of reasonable accommodations that a pregnant
employee might need?
• Modifying workplace policies, such as allowing a pregnant worker
more frequent breaks,
• Modifying her work schedule if she has severe morning sickness,
allowing her to start later (and work later to compensate),
• Allowing a pregnant worker placed on bed rest to telecommute, and
• Temporarily assigning a pregnant employee to a light duty position.

9. Do Your Homework
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Generally, employers don't go out of their way to discriminate against
pregnant workers or workers who have recently given birth. But, given the
myriad of employment-related issues and policies that could give rise to a
discrimination charge, it's a good idea to do your homework before taking any
action involving a pregnant employee or job applicant.

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