EEOC Guidance on Maternity and Parental Leave

August 11, 2014

Earlier this month, the Equal Employment Opportunity Commission (EEOC) issued new enforcement guidance on pregnancy-related discrimination in the workplace.

The new guidance focuses on the Pregnancy Discrimination Act of 1978 (PDA) and stresses the requirement that employees with pregnancy, childbirth, or related medical conditions must be permitted the same employment rights as employees with any other medical condition that impacts their ability to work. In each section of the guidance are examples of realistic work situations with an analysis of whether the employer’s actions or policies would be lawful. This guidance was deemed necessary given the significant number of EEOC cases alleging pregnancy discrimination and the apparent persistence of this type of workplace problem. Additionally, employers are reminded that employment decisions also cannot be biased by the employee’s past or future pregnancy. The guidance was issued along with a fact sheet for employers and a Q&A page covering pregnancy-related questions under the PDA, as well as the Americans with Disabilities Act (ADA) and Family and Medical Leave Act (FMLA).

The guidance also discusses the distinction between maternity leave and parental leave and cautions that “employers should carefully distinguish between” the two types of leave in drafting policies:

  • A maternity leave policy that limits eligibility to new birth mothers is only not discriminatory if the purpose is narrowly tailored to the medical needs of the birthing mother, i.e. recuperation from childbirth. If the policy purpose includes bonding time with the new child, then it is discriminatory to exclude other new parents, e.g. fathers and adoptive parents.
  • A parental leave policy for the purpose of caring for or bonding with a new child is only not discriminatory if all new parents are eligible, including birth mothers, fathers, adoptive parents, and other non-birth parents. If the policy excludes new birth mothers, then it is discriminatory even if there is a separate maternity leave policy.

It is important to note that the guidance does not require an employer to institute either a maternity or parental leave policy. It would also not be discriminatory to provide only one or the other, so long as the policy eligibility is appropriate for its stated purpose. Some employers will find they need to adjust their current leave policies to clarify or amend eligibility to align with this guidance.

As always, please contact your Keller account team if you have questions or concerns.