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  3. Written Testimony of Peggy Mastroianni Legal Counsel, EEOC

Written Testimony of Peggy Mastroianni Legal Counsel, EEOC

Meeting of February 15, 2012 - Unlawful Discrimination Against Pregnant Workers and Workers with Caregiving Responsibilities

I. Introduction

Good morning, Madam Chair, Commissioners, and General Counsel. Thank you for the opportunity to participate in today's meeting.

As the agency responsible for enforcing Title VII of the Civil Rights Act of 1964, EEOC has long worked to eliminate discrimination based on sex, including discrimination based on pregnancy, relying on a combination of enforcement, policy, and outreach efforts. More recently, we have expanded our focus to address newer forms of discrimination, including unlawful discrimination against individuals with caregiving responsibilities.

My remarks today will focus on these efforts, beginning with our initial pregnancy discrimination charge receipts and our development and amendment of sex discrimination regulations. I will then discuss the general requirements of the Pregnancy Discrimination Act, as well as the provisions of the Americans with Disabilities Act that may apply to pregnant workers. I will also address recent pregnancy discrimination enforcement and outreach data. Finally, I will describe the Commission's recent efforts to combat employment discrimination against individuals with caregiving responsibilities.

II. Development of Pregnancy Discrimination Law and Policy

a. 1964 – 1972: Early Title VII Pregnancy Discrimination Charges, Amendment of Sex Discrimination Guidelines

Title VII of the Civil Rights Act of 1964 prohibits, among other things, employment discrimination based on sex.1 Congress intended the prohibition of sex discrimination to include discrimination based on pregnancy, childbirth, and related medical conditions.2

During its first years of operation, the Commission received thousands of charges of discrimination related to pregnancy.3 Women reported that they were asked during interviews about their plans to start a family, while male applicants were not asked similar questions. Women contended that they were excluded from employment, not considered for promotions, or denied training because they were pregnant or because they might become pregnant. Women who became pregnant while employed alleged that they were fired or involuntarily placed on leave, regardless of their ability or desire to continue working. Women asserted that they were prohibited from using sick leave and denied disability benefits for pregnancy, childbirth, or related medical conditions. Women who were rehired after giving birth found themselves in entry-level positions, stripped of the service credits, pension credits, and seniority they had accrued during their prior employment.4 As a result, women progressed to positions of authority at a slower rate, were forced to postpone retirement, and received smaller pension benefits than colleagues with similar tenure.5 EEOC investigated these charges and obtained relief for Charging Parties when we determined that there was reasonable cause to conclude that discrimination had occurred.

In addition, the Commission issued numerous opinion letters regarding the validity of particular practices under federal employment discrimination law. Some of the Commission's initial opinion letters regarding pregnancy and employee benefits appear to have been overly cautious in their interpretation of Title VII.6 However, by 1969, and thereafter, the Commission took the position that employer benefits policies and practices related to pregnancy, maternity, and childbirth often discriminated against women.7

In 1972, after extensive study, the Commission amended its sex discrimination guidelines to specifically address employment policies related to pregnancy and childbirth.8 The amended guidelines provide that employment policies or practices that exclude applicants or employees because of pregnancy, childbirth, or related medical conditions violate Title VII.9 The guidelines also state that disabilities related to pregnancy, childbirth, or related medical conditions must be treated the same as other temporary disabilities for the purposes of employment-related health or disability insurance, sick leave, and accrual of seniority and other benefits.10 Also, according to the guidelines, employment policies that result in termination of an employee with a temporary disability violate Title VII if they have a disparate impact on employees of one sex and are not justified by business necessity.11

b. 1974 – 1976: Supreme Court Decisions in Geduldig v. Aiello and General Electric Co. v. Gilbert

Two years after the sex discrimination guidelines were revised, the Supreme Court heard the first of two cases involving disability insurance programs that denied coverage for pregnancy-related disabilities. In Geduldig v. Aiello, the Supreme Court held that a state disability insurance system that denied benefits for disabilities resulting from normal pregnancy did not violate the Equal Protection Clause of the Fourteenth Amendment.12 Two years later, in General Electric Co. v. Gilbert, the Supreme Court relied heavily on Geduldig in holding that a disability plan that denied benefits for disabilities arising from pregnancy did not constitute sex-based discrimination in violation of Title VII of the Civil Rights Act of 1964.13

c. 1978-1979: Pregnancy Discrimination Act of 1978 and Revised Sex Discrimination Guidelines

Members of Congress expressed dissatisfaction with the Gilbert decision. They contended that the ruling was contrary to the legislative intent of Title VII and asserted that the holding would detrimentally affect women workers and their families.14 Accordingly, in 1978, in response to Gilbert, Congress passed and President Jimmy Carter signed the Pregnancy Discrimination Act (PDA).15 The PDA amends Title VII to prohibit discrimination based on pregnancy, childbirth, or related medical conditions.16 The PDA also requires that employers and other covered entities treat employees disabled by pregnancy, childbirth, or related medical conditions the same as any other temporarily disabled employee.17 EEOC subsequently revised its Guidelines on Discrimination Because of Sex to conform with the PDA.18 The Commission also added an Appendix to the Guidelines to address questions EEOC received from the public regarding compliance with the new statute.19

d. 1980s– 1990s: Significant Supreme Court Decisions

Since Gilbert, the Supreme Court has issued decisions in a handful of pregnancy discrimination cases. In Newport News Shipbuilding & Dry Dock Co. v. EEOC, the Court held that a health insurance plan that provided less comprehensive coverage to the spouses of male employees than to the spouses of female employees violated Title VII.20 Four years later, in Cal. Fed. Savs. & Loan Ass'n v. Guerra, the Court ruled that the Pregnancy Discrimination Act does not prohibit employment practices favoring pregnant women.21 Finally, in 1991, in Int'l Union, UAW v. Johnson Controls, the Court concluded that a policy that excluded fertile women from jobs involving lead exposure above OSHA standards constituted sex discrimination in violation of Title VII.22

III. PDA Requirements

a. General Principles of Pregnancy Discrimination

The PDA prohibits employers and other covered entities from discriminating against applicants, employees, and former employees on the basis of pregnancy, childbirth, or related medical conditions with respect to all aspects of employment. In addition, the PDA requires employers and other covered entities to treat pregnancy, childbirth, and related medical conditions in the same manner that it treats other temporary medical conditions that limit an employee's ability to work. The PDA prohibits discrimination based on current pregnancy, past pregnancy, potential or intended pregnancy, or medical conditions related to pregnancy or childbirth. The PDA also prohibits harassment and retaliation.

Pregnancy discrimination may arise in the form of disparate treatment, in which pregnancy, childbirth, or a related medical condition is a motivating factor in the adverse employment action. In some cases, employers may argue that excluding pregnant or fertile women from consideration is not unlawful because non-pregnancy is a bona fide occupational qualification (BFOQ).23 The BFOQ defense is an extremely narrow exception to the general prohibition of discrimination based on sex.24 To prevail, the employer must establish, based on objective evidence, that pregnancy interferes with a female employee's ability to perform the job. In general, employers have had little success asserting this defense in pregnancy discrimination cases.25

Title VII also prohibits facially neutral policies or practices that have a disproportionate adverse effect on women affected by pregnancy, childbirth, or related medical conditions where the employer cannot show that the policy is job related for the position in question and consistent with business necessity. The employer can prove business necessity by showing that the requirement is necessary for safe and efficient job performance. If the employer makes this showing, a violation still can be found if there is a less discriminatory alternative that meets the business need and the employer refuses to adopt it. Disparate impact analysis has been used by pregnant plaintiffs to challenge, for example, weight lifting requirements, light duty limitations, and restrictive leave policies.26

b. Specific Issues

i. Light Duty

Unless there is a nondiscriminatory reason or business justification for doing otherwise, an employer must provide pregnant workers with the same access to light duty assignments that it provides to non-pregnant workers with other temporary medical conditions that similarly limit their ability to work.27

ii. Leave

An employer may not require an employee to take leave because she is pregnant or prohibit an employee from returning to work for a predetermined period of time after she gives birth, as long as the employee is able to perform her job.28

At the same time, employers must permit women with physical limitations resulting from pregnancy to take leave on the same terms and conditions as other employees who are similarly limited in their ability or inability to work.29 For example, an employer may not prohibit employees temporarily disabled because of pregnancy or related medical conditions from using accrued paid leave if the employer permits employees temporarily disabled for other reasons to do so.

Employers must treat employees on leave because of pregnancy-related conditions the same as employees who are on leave for other reasons. Thus, if an employer allows employees on leave to accrue seniority, service credits, pay increases, or other benefits, the employer must allow employees on leave for pregnancy-related reasons to accrue these benefits.30

iii. Health Insurance

Employers that provide health insurance to employees must cover pregnancy, childbirth, and related medical conditions on the same basis and under the same conditions as coverage for other medical conditions.31

Employers must provide the same level of medical coverage to female employees and their dependents as they provide to male employees and their dependents.32

iv. Retirement Benefits and Seniority

As noted above, employers must allow women who are on pregnancy-related leave to accrue seniority in the same way as those who are on leave for reasons unrelated to pregnancy. Therefore, if an employer allows employees who take medical leave to retain their accumulated seniority and to accrue additional service credit during their leaves, the employer must treat women on pregnancy-related leave the same way. Similarly, employers must treat pregnancy-related leave the same as other medical leave in calculating the years of service that will be credited in evaluating an employee's eligibility for a pension or for early retirement.33

IV. Pregnancy Discrimination and ADA

a. Application of the ADA to Pregnancy and Impairments Related to Pregnancy

Title I of the Americans with Disabilities Act of 1990, as amended (ADA), prohibits employment discrimination on the basis of disability.34 Under the ADA, a disability is a physical or mental impairment that substantially limits a major life activity, a record of such an impairment, or being regarded as having a disability.35 The Americans with Disabilities Act Amendments Act of 2008 states that the definition of disability should be interpreted in favor of broad coverage of individuals and adopts several other "rules of construction" that make it easier for individuals with a wide range of impairments, which may include impairments related to pregnancy, to establish that they have covered disabilities.36

As indicated in the Appendix to the EEOC Regulations implementing the ADA, ordinary pregnancy is not an impairment.37 However, an applicant or employee who has a pregnancy-related impairment that substantially limits a major life activity (including a major bodily function) is an individual with a disability protected by the ADA, even if the resulting limitation is not permanent or long-term.38 For example, an employee who is substantially limited in normal cell growth as a result of pregnancy-related anemia is an individual with a disability. Similarly, an employee who is substantially limited in lifting due to pregnancy-related sciatica, substantially limited in fine motor tasks due to pregnancy-related carpal tunnel syndrome, or substantially limited in endocrine function from gestational diabetes would be an individual with a disability and may be entitled to reasonable accommodation, if needed.

In addition, a pregnancy-related impairment that is no longer substantially limiting but was substantially limiting in the past may constitute a "record of" a disability.39 For example, an employee who had preeclampsia, which substantially limited her circulatory and cardiovascular functions due to hypertension during her third trimester, has a record of a disability, and an employer could not discriminatorily refuse to hire her on that basis.

Finally, a pregnancy-related impairment is covered under the "regarded as" prong if it is the basis of a prohibited employment action and is not "transitory and minor."40 For example, a housekeeper who is placed on involuntary leave because her supervisor is concerned that she has a pregnancy-related back impairment that prevents her from performing cleaning duties, despite the fact that she has no medical restrictions, is regarded as having a disability.

b. Reasonable Accommodation

Individuals with disabilities are entitled to reasonable accommodation for known physical and mental limitations resulting from their disabilities, assuming accommodation would not pose an undue hardship.41 Accordingly, an employee who develops a disability related to pregnancy, childbirth, or related medical conditions may be entitled to reasonable accommodation, absent undue hardship. For example, a librarian who develops gestational diabetes may request that her break schedule be modified to enable her to eat every few hours to control her blood sugar levels, or a lawyer who is put on bed rest due to cervical or placental complications during pregnancy may request permission to telecommute. Because diabetes substantially limits endocrine function, and assuming the cervical or placental complications substantially limit a major life activity, the employer will be required to provide an accommodation unless it would pose an undue hardship.42

Employees whose impairments are exacerbated due to pregnancy, childbirth, or related medical conditions may also be entitled to reasonable accommodation. For example, pregnancy may aggravate the symptoms of an employee's heart condition, causing the employee to request leave to attend medical appointments or to seek medical treatment.

Other examples of reasonable accommodations for employees who have impairments related to pregnancy, childbirth, or related medical conditions include temporarily modifying or reassigning tasks that the employee is unable to perform because of the impairment, granting leave for recuperation from medical impairments, or temporarily reassigning the employee to a light duty position, if available.

V. EEOC Pregnancy Discrimination Enforcement, Guidance, and Outreach

a. Enforcement

Recent enforcement data indicates that pregnancy discrimination persists, 48 years after the enactment of Title VII and 34 years after the enactment of the Pregnancy Discrimination Act. Over the past ten fiscal years, EEOC and state and local Fair Employment Practices agencies (FEPAs) have received 53,865 charges alleging pregnancy discrimination, resolved 52,396 charges, and obtained $150.5 million in monetary benefits for Charging Parties.43

Pregnancy discrimination Charging Parties come from all professions and all walks of life. Recent Charging Parties include senior executives, managers, bookkeepers, teachers, truck drivers, bartenders, customer service representatives, exterminators, housekeepers, administrative assistants, and janitors. Respondents range from small businesses to mid-sized organizations to Fortune 500 companies, representing a wide variety of industries throughout the country and the world. Our pregnancy discrimination charges reflect this geographic diversity, spanning all of EEOC's districts.44

The issues most commonly alleged in pregnancy discrimination charges have remained relatively consistent over the past ten fiscal years. Between 68 and 71 % of pregnancy discrimination charges include allegations of discharge based on pregnancy. One Charging Party, a retail associate, alleged that after she informed her manager she was pregnant, the manager reduced her hours, hired two new sales associates and scheduled them to work while continuing to cut the Charging Party's hours, and eventually removed the Charging Party from the work schedule.45 In another case, a Charging Party alleged that she was demoted and ultimately fired because she was unable to comply with her manager's instruction to limit her maternity leave to two weeks after an unanticipated C-section.46

Between 18 and 25 % of pregnancy discrimination charges include allegations of disparate terms and conditions of employment based on pregnancy. In these cases, Charging Parties have alleged that management subjected them to closer scrutiny and harsher discipline than non-pregnant employees, suspended them pending receipt of medical releases, required them to undergo medical examinations that were not job related or consistent with business necessity, refused to cover pregnancy-related medical expenses while paying for medical expenses related to other medical conditions, and placed them on temporary leave and instructed them not to return to work until after they "got rid of the problem."47

Between 9 and 13 % of pregnancy discrimination charges include allegations of pregnancy-based harassment. One Charging Party, an employee at a security services company, reported that her supervisor speculated with co-workers about whether she was pregnant, stated he wanted her off of the contract because of her childbearing status, and warned her that she "better not get pregnant again."48 Another Charging Party, a bookkeeper at a medical staffing agency, alleged that the company owner repeatedly insisted that her pregnancy was a joke, described her maternity leave as a "vacation," and asserted that maternity leave should be limited to two days.49 The manager of a third Charging Party, a security guard, reportedly told her that pregnant women belong at home, declared that her focus should be on her children, and criticized her appearance in her uniform because of her pregnancy.50

Finally, between 4 and 10 % of pregnancy discrimination charges include allegations of pregnancy-based discipline. One Charging Party, a manufacturing employee, asserted that she was frequently reprimanded, given a negative evaluation, subjected to retaliation, and ultimately fired after she informed her supervisor of her pregnancy.51 Another Charging Party, a sales executive, reported that she was placed on probation despite her qualifications and performance record and fired less than a month before her delivery date, because of her pregnancy.52

b. Guidance

As described above, both before and immediately after the enactment of the PDA, the EEOC revised its Guidelines on Discrimination Because of Sex to address pregnancy discrimination.53 Since then, EEOC has developed a variety of guidance material to educate EEOC staff, stakeholders, and the public about pregnancy discrimination and related issues. In 1995, the Commission issued a fact sheet on the Family and Medical Leave Act of 1993, the Americans with Disabilities Act of 1990, and Title VII of the Civil Rights Act of 1964.54 We are considering issuing new guidance on pregnancy discrimination in the coming months. We have also issued several informal discussion letters regarding pregnancy-related issues. The Appendix to my statement includes a list of relevant EEOC policy and technical assistance material.

c. Outreach

In addition to enforcing the law, EEOC conducts free and fee-based outreach on a variety of EEO topics, including pregnancy discrimination and caregiver discrimination.55 Over the past three fiscal years, the Commission conducted 107 outreach events related to pregnancy and maternity issues.

VI. Caregiver Discrimination

a. Relevance to EEOC-Enforced Laws

As previously described, EEOC has extensive experience investigating charges, issuing decisions, and developing policy related to pregnancy discrimination. More recently, the Commission has begun to examine unlawful employment discrimination against individuals with caregiving responsibilities. This group includes pregnant women and other individuals, male and female, who care for spouses, children, parents, or other relatives or friends.56

EEOC has focused on unlawful employment discrimination against caregivers for several reasons. First, workplace demographics have changed significantly over the past half-century.57 Many workers—female and male—currently juggle work and caregiving responsibilities, balancing projects, meetings, and deadlines with childcare, homework, and doctor's appointments.58 However, caregiving responsibilities are not limited to children under 18. As a result of medical advancements and increased life expectancies, an increasing number of workers care for elderly parents, in-laws, spouses, or other relatives.59 In addition, many workers care for individuals of all ages who have disabilities.60

Second, despite the prevalence of caregivers in the workplace, stereotypes about caregivers persist and may result in unlawful discrimination.61 For example, employers may deny jobs or opportunities for advancement to employees with caregiving obligations based on the assumption that the employees will be focused on their caregiving duties to the detriment of their work responsibilities.

Finally, discrimination directed at caregivers is often blatant, suggesting that employers may be unaware that such conduct is unlawful.62 This misconception, particularly on the part of smaller employers who lack Human Resources staff, may be understandable, as none of the laws enforced by EEOC explicitly prohibits discrimination based solely on parental or other caregiver status.63 However, federal employment discrimination laws may be implicated if a worker with caregiving responsibilities is subjected to discrimination based on sex, race, or another statutorily protected characteristic. Accordingly, in 2007, EEOC issued an enforcement guidance and corresponding question & answer document on unlawful disparate treatment of workers with caregiving responsibilities.64 The enforcement guidance explains various circumstances under which discrimination against a caregiver might violate federal equal employment opportunity law.

b. Unlawful Caregiver Discrimination Under Title VII

Many caregiver discrimination cases involve unlawful disparate treatment of caregivers based on gender, in violation of Title VII. For example, female caregivers may report that they were denied employment opportunities that are available to male colleagues with young children, or that they were reassigned to less desirable projects after giving birth based on the assumption that as new mothers, they will be—or should be—less committed to their jobs.65 In some cases, male caregivers have complained of gender discrimination, asserting, for example, that employers denied their requests for leave for child care purposes while granting similar requests made by female colleagues.66

Caregivers may also assert that they have been subjected to discrimination based on race or national origin, in violation of Title VII.67 For example, a Latina working mother may be subjected to discrimination based on stereotypes about working mothers or pregnant workers, as well as stereotypes about Hispanic individuals.

c. Unlawful Caregiver Discrimination Under the ADA

Unlawful disparate treatment of caregivers may also arise under the ADA. In addition to prohibiting discrimination against a worker because of his or her own disability, the ADA prohibits discrimination because of the disability of an individual with whom the worker has a relationship or association, such as a child, spouse, or parent.68 Under this provision, an employer may not treat a worker less favorably because of his or her caregiving responsibilities for an individual with a disability.69 For example, an employer may not refuse to promote an employee because the employee occasionally requests leave to accompany his wife, who has Parkinson's disease, to medical appointments, if the employer does not penalize other employees who take leave for personal reasons. An employer also may not treat a worker less favorably based on stereotypical assumptions about the worker's ability to perform job duties satisfactorily while also providing care to a relative or other individual with a disability. For example, an employer may not refuse to hire an applicant who is the primary caregiver for her grandson, who has autism, because the employer believes the applicant's caregiving duties will distract her from her job.

d. Retaliation Against Caregivers

The laws enforced by EEOC prohibit employers and other covered entities from retaliating against an individual for filing a charge of discrimination, participating in a discrimination proceeding (such as an investigation or lawsuit), or otherwise opposing discrimination.70 Accordingly, an employee who reported internally that working mothers were being subjected to gender stereotyping would be protected from discrimination, as would an employee who filed a charge of discrimination or participated in an investigation of the alleged conduct.

The retaliation provisions under federal employment discrimination statutes protect individuals against any form of retaliation that would be reasonably likely to deter someone from engaging in protected activity.71 This might include demoting an employee, reducing an employee's pay, or altering the employee's duties because he or she reported potentially unlawful conduct.

Caregivers may be particularly vulnerable to unlawful retaliation because of the challenges they face in balancing work and family responsibilities. An action that would be likely to deter a working mother from filing a future EEOC charge might be less likely to deter someone who does not have substantial caregiving responsibilities. As the Supreme Court noted in 2006, "A schedule change in an employee's work schedule may make little difference to many workers, but may matter enormously to a young mother with school age children."72

e. Caregiver Discrimination Enforcement Data

The Commission only recently began collecting enforcement data on caregiver discrimination. Based on this initial information, the number of caregiver discrimination charge receipts appears to have increased relatively steadily over the past five fiscal years. During that time, the Commission has received approximately 712 charges alleging unlawful caregiver discrimination, resolved approximately 564 charges, and obtained approximately $796,000 in monetary benefits for Charging Parties.

Interestingly, the issues most commonly alleged in caregiver discrimination charges over the past five fiscal years mirror the issues most commonly alleged in pregnancy discrimination charges over the past ten fiscal years.73 Almost two-thirds of the caregiver discrimination charge receipts (63%) include an allegation of unlawful discharge. Almost one-third (30 %) include an allegation of disparate terms and conditions of employment. Twenty percent include allegations of unlawful harassment, and 18 % include allegations of unlawful discipline.

Respondents represent a variety of industries, including health care, manufacturing, retail, professional services, and food service.

f. Best Practices for Workers with Caregiving Responsibilities

In the 2007 enforcement guidance on unlawful disparate treatment of workers with caregiving responsibilities, EEOC encouraged employers to "adopt best practices to make it easier for all workers . . . to balance work and personal responsibilities," recognizing that such practices may benefit employers and employees.74 To assist employers in this effort, in 2009, the Commission issued a technical assistance document, Employer Best Practices for Workers with Caregiving Responsibilities, that suggests best practices that employers may adopt—and in some cases, have adopted—to reduce the chance of EEO violations against caregivers and to remove barriers to equal employment opportunity for workers with caregiving responsibilities.75

While developing the 2009 technical assistance piece, we discovered that studies have found that flexible workplace policies that help employees achieve work-life balance also enhance productivity, reduce absenteeism, reduce costs, and appear to increase profitability.76 According to these studies, these benefits remain constant, regardless of the economic climate.77 Research revealed that some companies even used flexible workplace policies as an alternative to layoffs.78

As a result, guidance material related to unlawful caregiver discrimination and best practices for workers with caregiving responsibilities is particularly important during an economic downturn because these practices enable employees to retain their jobs and enable employers to retain talented workers. These policies also position companies to rebound quickly as soon as business improves.79

VII. Conclusion

During legislative deliberations on the proposed Pregnancy Discrimination Act, Senator Jacob Javits declared:

[W]e can no longer in this country legislate with regard to women workers on the basis of outdated stereotypes and myths. The facts are that women, like men, often need employment to support families, that women, like men, find their work and their careers important sources of self-esteem and personal growth, and that women, like men, have the skills and motivation to make important contributions to this country's life, if only we will clear away the arbitrary restraints that sometimes stand in the way. Arbitrary job discrimination against women based on pregnancy or childbirth has no place in our society.80

This statement is as true today as it was when it was first uttered 34 years ago, and this sentiment continues to motivate EEOC in its efforts to eradicate unlawful discrimination based on pregnancy and unlawful discrimination against caregivers.

Again, thank you for inviting me to participate in today's meeting. I look forward to continuing to work with the members of the Commission and Commission staff on these important issues.

APPENDIX: SELECTED EEOC POLICY AND TECHNICAL ASSISTANCE MATERIAL

General Information

Regulations

Fact Sheets, Enforcement Guidances, and Related Documents

Commission Decisions and Related Documents

Informal Discussion Letters

Footnotes

1 42 U.S.C. § 2000e-2 (2012).

2 See, e.g., 124 CONG. REC. 21,440 (1978) (statement of Rep. Thompson) ("H.R. 6075 [which as proposed amends Title VII of the Civil Rights Act of 1964 to prohibit sex discrimination on the basis of pregnancy] seeks only to clarify what most feel was the original intent of Congress in enacting the Civil Rights Act—that the title VII prohibitions against sex discrimination in employment include discrimination based on "pregnancy, childbirth, or related medical conditions."); 123 CONG. REC. 7,539 (1977) (statement of Sen. Williams) ("[T]he congressional intent in enacting title VII of the Civil Rights Act . . . was to protect all individuals from unjust employment discrimination, including pregnant workers.").

3 Legislation to Prohibit Sex Discrimination on the Basis of Pregnancy: Hearing on H.R. 5055 and H.R. 6075 Before the Subcomm. on Emp't Opportunities of the H. Comm. on Educ. and Labor, 95th Cong. 122 (1977) [hereinafter Pregnancy Discrimination Hearings] (statement of Ethel Bent Walsh, Vice Chairman, Equal Employment Opportunity Commission).

4 Pregnancy Discrimination Hearings, supra note 3, at 122 (statement of Ethel Bent Walsh, Vice Chairman, Equal Employment Opportunity Commission). See also 123 CONG. REC. 29,385 (1977) (statement of Sen. Williams) (noting that in 1964, more than 30 percent of employers required women to go on maternity leave before their seventh month of pregnancy and 40 percent of employers fired women who became pregnant); 123 CONG. REC. 10,582 (1977) (statement of Rep. Hawkins) (arguing that such policies were particularly detrimental for women who became pregnant multiple times during their careers).

5 See, e.g., 123 CONG. REC. 10,582 (1977) (statement of Rep. Hawkins); 123 CONG. REC. 29,385 (1977) (statement of Sen. Williams) ("[T]he overall effect of discrimination against women because they might become pregnant, or do become pregnant, is to relegate women in general, and pregnant women in particular, to a second-class status with regard to career advancement and continuity of employment and wages.").

6Gen. Elec. Co. v. Gilbert, 429 U.S. 125, 142 – 43, 157-58 (1976) (describing EEOC opinion letters that indicated that excluding individuals with disabilities resulting from pregnancy or childbirth from a long-term salary continuation program and excluding maternity coverage from an insurance plan did not violate Title VII).

7 Brief of U.S. Equal Employment Opportunity Commission as Amicus Curiae Supporting Appellees, Geduldig v. Aiello, 417 U.S. 484 (1974) (No. 73-640), 1974 WL 185756, at *9-10; Pregnancy Discrimination Hearings, supra note 3, at 122 (statement of Ethel Bent Walsh, Vice Chairman, Equal Employment Opportunity Commission) (noting that between 1969 and 1970, the Commission concluded that terminating a female employee because of her pregnancy and refusing to rehire her, providing maternity leave to female employees only in certain circumstances, and providing different maternity coverage for female employees and wives of male employees constituted sex discrimination in violation of Title VII).

8 Guidelines on Discrimination Because of Sex, 37 Fed. Reg. 6,835 (Apr. 5, 1972) (to be codified at 29 C.F.R. pt. 1604.10).

9 29 C.F.R. § 1604.10(a) (2012).

10 29 C.F.R. § 1604.10(b) (2012).

11 29 C.F.R. § 1604.10(c) (2012).

12 417 U.S. 484 (1974).

13 429 U.S. 125 (1976).

14 See, e.g., 123 CONG. REC. 10,582 (1977) (statement of Rep. Hawkins) (arguing that some women might be forced by economic necessity to restrict themselves to jobs that provide benefits for disabilities related to pregnancy, despite the fact that such jobs may have low pay and minimal responsibility, thereby limiting their earnings and advancement potential); 123 CONG. REC. 7,541 (1977) (statement of Sen. Mathias) (warning that the Gilbert decision could result in the development of additional sex-related classifications); 123 CONG. REC. 7,539 (1977) (statement of Sen. Williams) (describing the "unjust and severe economic, social, and psychological consequences" that would result if women were forced on unpaid leave because of pregnancy and denied coverage for disabilities resulting from pregnancy or childbirth). See also Pregnancy Discrimination Hearings, supra note 3, at 50-51 (statement of Sherrie O'Steen, Plaintiff, Gen. Elec. Co. v. Gilbert) (describing her experience as a pregnant, single mother forced to apply for welfare after General Electric required her to quit because of her pregnancy). Ms. O'Steen's electricity was cut off because she was unable to pay the bill, leaving her and her family without lights, heat, or refrigeration. Id.

15 Pub. L. No. 95-555, 92 Stat. 2076 (codified as amended at 42 U.S.C. § 2000e(k) (1978)).

16 Id.

17 Id.

18 Final Amendments to Guidelines on Discrimination Because of Sex, and Addition of Questions and Answers concerning the Pregnancy Discrimination Act, Public Law 95-555, 92 Stat. 2076 (1978), 44 Fed. Reg. 23,804 (Apr. 20, 1979) (to be codified at 29 C.F.R. pt. 1604.10).

19 Id. at 23,805-09.

20 462 U.S. 669 (1983).

21 479 U.S. 272, 285 (1987) ("[W]e agree with the Court of Appeals' conclusion that Congress intended the PDA to be 'a floor beneath which pregnancy disability benefits may not drop—not a ceiling above which they may not rise.'") (quoting Cal. Fed. Savs. & Loan Ass'n v. Guerra, 758 F.2d 390, 396 (9th Cir. 1985)).

22 499 U.S. 187 (1991).

23 42 U.S.C. § 2000e-2(e) (2012). See, e.g., Int'l Union, UAW v. Johnson Controls, 499 U.S. 187 (1991).

24 29 C.F.R § 1604.2(a) (2012). See also Dothard v. Rawlinson, 433 U.S. 321, 334 (1977) ("[T]he bfoq exception was in fact meant to be an extremely narrow exception to the general prohibition of discrimination on the basis of sex.").

25 See, e.g., Johnson Controls, 499 U.S. at 206-07 (female sterility not a BFOQ); Deneen v. Nw. Airlines, Inc., 132 F.3d 431, 437 (8th Cir. 1998) ("a jury could reasonably conclude that the 75-pound lifting requirement was not a bona fide occupational qualification"); Jones v. Am. State Bank, 857 F.2d 494, 495 (8th Cir. 1988) (non-pregnancy not a BFOQ); Carney v. Martin Luther Home, Inc., 824 F.2d 643, 649 (8th Cir. 1987) (ability to lift or push residents without assistance not a BFOQ); EEOC v. Catholic Healthcare W., 530 F.Supp.2d 1096, 1107 (C.D. Cal. 2008) (fetal protection policy not a BFOQ); Peralta v. Chromium Plating & Polishing Corp., 2000 WL 34633645, *6 (E.D.N.Y. Sept. 15, 2000) (unpublished) (concern for pregnant employee and her unborn child and concern regarding potential tort liability not BFOQs). But see Chambers v. Omaha Girls Club, Inc., 834 F.2d 697 (8th Cir. 1987) ("negative role model" policy which required termination of unmarried employees who became pregnant or caused a pregnancy upheld as BFOQ); Harriss v. Pan Am. World Airways, Inc., 649 F.2d 670 (9th Cir. 1980) (mandatory maternity leave policy upheld as BFOQ).

26 See, e.g., Stout v. Baxter Healthcare Corp., 282 F.3d 856 (5th Cir. 2002) (attendance policy provided that more than three absences during first ninety days of employment would result in termination); Spivey v. Beverly Enters., Inc., 196 F.3d 1309 (11th Cir. 1999) (light-duty policy available only to employees with work-related injuries); Garcia v. Woman's Hosp. of Tex., 97 F.3d 810 (5th Cir. 1996) (150-pound lifting requirement).

27 Cf. 29 C.F.R. § 1604 app. (2012) ("An employer is required to treat an employee temporarily unable to perform the functions of her job because of her pregnancy-related condition in the same manner as it treats other temporarily disabled employees, whether by providing modified tasks, alternative assignments, disability leaves, leaves without pay, etc.").

28 29 C.F.R. § 1604 app. (2012).

29 29 C.F.R. § 1604.10(b) (2012).

30 Id.

31 Id. See also 29 C.F.R. § 1604 app. (2012). But see 42 U.S.C. § 2000e(k) (2012) (providing that employers are not required to provide health insurance benefits for abortion unless (1) the mother's life would be endangered if the fetus were carried to term, or (2) the abortion results in medical complications).

32 29 C.F.R. § 1604 app. (2012).

33 However, prior to the passage of the PDA, it did not violate Title VII for an employer's seniority system to allow women on pregnancy-related leave to earn less seniority credit than workers on other forms of short-term medical leave. Because the PDA is not retroactive, an employer is not required to adjust seniority credits for pregnancy-related leave that was taken prior to the effective date of the PDA (April 29, 1979), even if pregnancy leave was treated less favorably than other forms of short-term medical leave. Hulteen v. AT&T Corp., 556 U.S. 701 (2009).

34 42 U.S.C. §§ 12101 – 12117, 12201 - 12213 (2012).

35 42 U.S.C. § 12102 (2012).

36 Pub. L. No. 110-325, 122 Stat. 3553 (2008) (codified as amended at 42 U.S.C. §§ 12101 note, 12101-12103, 12111-12114, 12201-12213 (2009); 29 U.S.C. § 705, 705 note (2009)). See generally EEOC, The Americans with Disabilities Act Amendments Act, available at http://www.eeoc.gov/laws/statutes/adaaa_info.cfm (last visited Feb. 7, 2012).

37 29 C.F.R. § 1630 app. § 1630.2(h) (2012).

38 Id.

39 Id.

40 Id.

41 42 U.S.C. § 12112(b)(5)(A) (2012).

42 See generally EQUAL EMP'T OPPORTUNITY COMM'N, ENFORCEMENT GUIDANCE: REASONABLE ACCOMMODATION AND UNDUE HARDSHIP UNDER THE AMERICANS WITH DISABILITIES ACT (2002), available at http://www.eeoc.gov/policy/docs/accommodation.html.

43 Pregnancy Discrimination Charges, EEOC & FEPAs Combined: FY 1997 - FY 2011, available at http://www.eeoc.gov/eeoc/statistics/enforcement/pregnancy.cfm.

44 Charges alleging discrimination based on pregnancy have been filed in each of EEOC's 15 districts, as well as in the Washington Field Office. Over the past ten fiscal years, the following offices have received the greatest percentage of pregnancy charges: New York: 11.4 % of EEOC/FEPA pregnancy charge receipts; Miami: 10.9 %; Chicago: 10.4 %; Indianapolis: 8.9 %; Philadelphia: 8.8 %; San Francisco: 8.3 %.

45 Press Release, EEOC, D&K Suit City/DDK To Pay $20,000 To Settle EEOC Pregnancy Discrimination Suit (Nov. 29, 2011), available at http://www.eeoc.gov/eeoc/newsroom/release/11-29-11a.cfm.

46 Press Release, EEOC, Southwest Dental Group Pays $130,000 To Settle EEOC Pregnancy Discrimination Suit (Sept. 21, 2010), available at http://www.eeoc.gov/eeoc/newsroom/release/9-21-10b.cfm.

47 See, e.g., Press Release, EEOC, EEOC Alleges Beehive Homes Harassed, Demoted, and Discharged Pregnant Managers (Oct. 4, 2011), available at http://www.eeoc.gov/eeoc/newsroom/release/10-4-11.cfm (managers at an assisted living facility alleged that the owner repeatedly offered to hire replacements and subjected pregnant employees to closer scrutiny and harsher discipline than other, non-pregnant employees); Press Release, EEOC, DTM Corporation Sued by EEOC for Pregnancy Discrimination and Retaliation (Aug. 31, 2011), available at http://www.eeoc.gov/eeoc/newsroom/release/8-31-11.cfm (pregnant employees of government contractor reportedly suspended pending receipt of medical release and required to undergo medical exams that were not job related or consistent with business necessity); Press Release, EEOC, Britthaven to Pay $300,000 to Settle Pregnancy Discrimination Suit (Mar. 31, 2009), available at http://www.eeoc.gov/eeoc/newsroom/release/archive/3-31-09a.html (pregnant employees allegedly forced to required to obtain medical clearance to work, forced to take leave or fired despite capability to perform job duties); Press Release, EEOC, Saipan Company Settles EEOC Pregnancy Discrimination, Retaliation Suit for $80,000 (Aug. 31, 2011), available at http://www.eeoc.gov/eeoc/newsroom/release/8-31-11b.cfm (gas station workers alleged that their company required them to pay for pregnancy-related medical expenses, even though the company paid for medical expenses of employees with other medical conditions); Press Release, EEOC, Decker Transport Sued by EEOC for Pregnancy Discrimination (Aug. 12, 2009), available at http://www.eeoc.gov/eeoc/newsroom/release/archive/8-12-09c.html (after informing company of her pregnancy, truck driver reportedly placed on temporary leave and told not to return to work until after she "got rid of the problem.").

48 Press Release, EEOC, DTM Corporation Sued by EEOC for Pregnancy Discrimination and Retaliation (Aug. 31, 2011), available at http://www.eeoc.gov/eeoc/newsroom/release/8-31-11.cfm.

49 Press Release, EEOC, EEOC Sues Milwaukee Medical Staffing Agency for Pregnancy Discrimination (Apr. 27, 2011), available at http://www.eeoc.gov/eeoc/newsroom/release/4-27-11b.cfm.

50 Press Release, EEOC, U.S. Security Associates Pays Nearly $80,000 to Settle EEOC Pregnancy Discrimination Lawsuit (Jan. 27, 2010), available at http://www.eeoc.gov/eeoc/newsroom/release/1-27-10a.cfm.

51 Press Release, EEOC, Landau Uniforms Sued By EEOC For Pregnancy Discrimination (Sept. 28, 2011), available at http://www.eeoc.gov/eeoc/newsroom/release/9-28-11g.cfm.

52 Press Release, EEOC, Kohler Company Pays $175,000 to Settle EEOC Pregnancy Discrimination Lawsuit (Nov. 25, 2009), available at http://www.eeoc.gov/eeoc/newsroom/release/11-25-09.cfm.

53 Guidelines on Discrimination Because of Sex, 37 Fed. Reg. 6,835 (Apr. 5, 1972) (to be codified at 29 C.F.R. pt. 1604.10). Final Amendments to Guidelines on Discrimination Because of Sex, and Addition of Questions and Answers concerning the Pregnancy Discrimination Act, Public Law 95-555, 92 Stat. 2076 (1978), 44 Fed. Reg. 23,804 (Apr. 20, 1979) (to be codified at 29 C.F.R. pt. 1604.10).

54 EQUAL EMP'T OPPORTUNITY COMM'N, THE FAMILY AND MEDICAL LEAVE ACT, THE AMERICANS WITH DISABILITIES ACT, AND TITLE VII OF THE CIVIL RIGHTS ACT OF 1964 (1995), available at http://www.eeoc.gov/policy/docs/fmlaada.html.

55 EEOC Outreach, Education, and Technical Assistance, http://www.eeoc.gov/eeoc/outreach/index.cfm (last visited Feb. 3, 2012).

56 See EQUAL EMP'T OPPORTUNITY COMM'N, ENFORCEMENT GUIDANCE: UNLAWFUL DISPARATE TREATMENT OF WORKERS WITH CAREGIVING RESPONSIBILITIES I.A (2007), available at http://www.eeoc.gov/policy/docs/caregiving.html#caregive [hereinafter CAREGIVER GUIDANCE] (describing variety of childcare, eldercare, and care for individuals with disabilities undertaken by labor force participants).

57 See, e.g., CAREGIVER GUIDANCE, supra note 56, at I.A (summarizing the changes in labor force demographics since 1964).

58 See CAREGIVER GUIDANCE, supra note 56, at I.A (stating that while women, particularly women of color, remain disproportionately likely to have primary caregiving responsibilities, men have increasingly assumed caretaking duties).

59See CAREGIVER GUIDANCE, supra note 56, at I.A (explaining eldercare responsibilities).

60 See CAREGIVER GUIDANCE, supra note 56, at I.A (noting that more than 30 % of families have at least one family member with a disability and that approximately 10 % of families with children under 18 have a child with a disability).

61 See, e.g., Chadwick v. Wellpoint, Inc., 561 F.3d 38 (1st Cir. 2009) (female employee alleged she was denied a promotion because of the belief that mothers focus on their childcare responsibilities instead of their work responsibilities); Gerving v. Opbiz, L.L.C., 324 Fed. Appx. 692, 2009 WL 1144226 (9th Cir. Apr. 29, 2009) (unpublished) (after plaintiff became stepmother of three young children, supervisor gave her poor performance reviews, informed her that working mothers could not perform as well as men or women without children, stated that mothers should stay at home, and instructed employee to choose between being a mother and being a sales manager); Lettieri v. Equant, Inc., 478 F.3d 640, 643 (4th Cir. 2007) (female employee rejected for promotion in part because of child care and family responsibilities); Gallina v. Mintz, Levin, Cohn, Ferris, Glosky & Popeo, P.C., 123 Fed. Appx. 558, 561, 562, 2005 WL 240390, *2, *4 (4th Cir. Feb. 2, 2005) (unpublished) (female associate directed to choose between being "a successful mommy or a successful lawyer" denied pay increase and fired after complaining about sex discrimination); Back v. Hastings on Hudson Union Free Sch. Dist., 365 F.3d 107, 115 (2d Cir. 2004) (supervisors allegedly told psychologist that her position might not be appropriate for someone with "little ones" and stated it was "not possible for [her] to be a good mother and have this job" before denying her tenure and terminating her appointment); Lust v. Sealy, Inc., 383 F.3d 580, 583 (7th Cir. 2004) (supervisor declined to consider female employee for promotion because he assumed she would not want to relocate her family); Knussman v. Md., 272 F.3d 625, 630 (4th Cir. 2001) (rejecting male plaintiff's request for leave to care for his wife and newborn baby, defendant declared that plaintiff would qualify as a primary care giver only if his wife were "in a coma or dead"). But see Peters v. Shamrock Foods Co., 262 Fed. Appx. 30, 2007 WL 4553528 (9th Cir. Dec. 27, 2007) (unpublished) (Title VII not violated where male selectee was more qualified than female applicant, despite the fact that the decision-maker reportedly indicated two years prior that female applicant was not selected for a different position because she was a "mom" and perceived to have travel restrictions).

62 See, e.g., Gerving, 324 Fed. Appx. at 694, 2009 WL 1144226, *1 (after plaintiff became stepmother of three young children, supervisor gave her poor performance reviews, informed her that working mothers could not perform as well as men or women without children, stated that mothers should stay at home, and instructed employee to choose between being a mother and being a sales manager); Gallina, 123 Fed. Appx. at 561, 562, 2005 WL 240390, *2, *4 (female associate directed to choose between being "a successful mommy or a successful lawyer" denied pay increase and fired after complaining about sex discrimination); Back, 365 F.3d at 115 (supervisors allegedly told psychologist that her position might not be appropriate for someone with "little ones" and stated it was "not possible for [her] to be a good mother and have this job" before denying her tenure and terminating her appointment).

63 Caregivers may have certain rights under federal statutes enforced by other agencies, including the Family and Medical Leave Act. 29 U.S.C. §§ 2601 – 2654 (2012). See generally U.S. Dep't of Labor, Wage & Hour Div., Family and Medical Leave Act, available at http://www.dol.gov/whd/fmla/index.htm (last visited Feb. 3, 2012). In addition, state or local laws may provide broader protections for caregivers. See, e.g., EQUAL EMP'T OPPORTUNITY COMM'N, EMPLOYER BEST PRACTICES FOR WORKERS WITH CAREGIVING RESPONSIBILITIES n.20 (2009), available at http://www.eeoc.gov/policy/docs/caregiver-best-practices.html#20 [hereinafter EMPLOYER BEST PRACTICES] (summarizing state and local statutes that prohibit employment discrimination based on parental status or caregiving responsibilities).

64 CAREGIVER GUIDANCE, supra note 56; EQUAL EMP'T OPPORTUNITY COMM'N, QUESTIONS AND ANSWERS ABOUT EEOC'S ENFORCEMENT GUIDANCE ON UNLAWFUL TREATMENT OF WORKERS WITH CAREGIVING RESPONSIBILITIES (2007), available at https://www.eeoc.gov/questions-and-answers-about-eeocs-enforcement-guidance-unlawful-disparate-treatment-workers.

65 See, e.g., Phillips v. Martin Marietta Corp., 400 U.S. 542 (1971) (employer hired men with young children but refused to hire women with young children); CAREGIVER GUIDANCE, supra note 56, at II.A.3 (employee removed from high-profile cases after she adopted a baby).

66 See, e.g., EMPLOYER BEST PRACTICES, supra note 63, at n.35 (summarizing cases in which male plaintiffs were denied leave to provide care for family members).

67 See generally CAREGIVER GUIDANCE, supra note 56, at I.A (describing caregiving responsibilities of women of color); CAREGIVER GUIDANCE, supra note 56, at II.A.4 (providing examples of unlawful caregiver discrimination against women of color).

68 42 U.S.C. § 12112(b)(4) (2012). Section 501 of the Rehabilitation Act provides the same protection to federal workers. 29 U.S.C. § 791(g) (2012) (incorporating ADA standards). See also ); CAREGIVER GUIDANCE, supra note 56, at II.E (addressing unlawful caregiver stereotyping under the ADA).

69 Employers are not required to provide reasonable accommodations to applicants or employees who are the primary caregivers of individuals with disabilities. For example, the ADA would not require an employer to modify its leave policy for an employee who needs time off to care for a child with a disability. An employee who needs leave to care for a spouse, child, or parent may be entitled to leave under the Family and Medical Leave Act, or other state or local leave laws. See supra note 63.

70 Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e-3(a) (2012); Age Discrimination in Employment Act of 1967, as amended, 29 U.S.C. § 623(d) (2012); Americans with Disabilities Act of 1990, as amended, 42 U.S.C. § 12203 (2012). See also Fair Labor Standards Act of 1938, as amended, 29 U.S.C. § 215(a)(3) (2012) (prohibiting retaliation against employees who file Equal Pay Act complaints or proceedings or participate in such proceedings). Federal employees are also protected against retaliation under each of the employment discrimination statutes. See, e.g., Rehabilitation Act of 1973, as amended, 29 U.S.C. § 794(d) (2012) (incorporating ADA prohibition of retaliation); Gomez-Perez v. Potter, 553 U.S. 474 (2008) (recognizing retaliation cause of action for federal employees under the ADEA); Hale v. Marsh, 808 F.2d 616 (7th Cir. 1986) (recognizing retaliation cause of action for federal employees under Title VII).

71Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006).

72 Burlington N., 548 U.S. at 69.

73 EEOC began collecting caregiver discrimination enforcement data in Fiscal Year 2007.

74 CAREGIVER GUIDANCE, supra note 56, at I.B.

75 EMPLOYER BEST PRACTICES, supra note 63.

76 EMPLOYER BEST PRACTICES, supra note 63, at n.6-8.

77 EMPLOYER BEST PRACTICES, supra note 63, at n.9.

78 EMPLOYER BEST PRACTICES, supra note 63, at n.9.

79 EMPLOYER BEST PRACTICES, supra note 63, at n.10.

80 123 CONG. REC. 29,387 (1977) (statement of Sen. Javits).