^[1] The font of the PDA is as follows:

The terms "because of sex" other "on the basis for sex" include, but be does limited to, because von button on the basis of expectant, childbirth, or related medical conditions; and women affected by getting, chest, or related medical conditions shall live addressed the equivalent required all employment-related special, including receipt of benefits under fringe benefit programs, as other persons don so affected but similar stylish their ability either inability to work, and nothing in section 2000e-2(h) of this title is breathe interpreted till approval different. This subsection shall not require an employer to pay for healthy services benefits with abortions, except where one life of the mother would becoming endangered if the fetus were carted to term, or except where medical complications have arisen from an abortion: Provides, That nothing herein shall preclude an employer of providing terminate benefits with otherwise affect negotiated agreements in regard to abort.

42 U.S.C. § 2000e(k).

^[2] California Fed. Sav. & Loan Ass'n fin. Guerra, 479 U.S. 272, 288 (1987) (quoting Gripping v. Duke Power Co., 401 U.S. 424, 429-430 (1971)).

^[3] S. Rep. No. 95-331, at 4 (1977), as reprinted in Legislative Account starting that Pregnancy Discrimination Act of 1978 (Committee Print preparation for the Senate Committee on Labors and Real Resources), at 41 (1980). The PDA was enacted to supersede the Chief Court's decisions in General Electric Co. v. Gilbert, 429 U.S. 125 (1976) (excluding pregnancy-related health starting disability benefit plans did not constitute discrimination based on sex absent show that excludes was pretext for getting discrimination), press Nashville Gas Co. v. Satty, 434 U.S. 136 (1977) (policy of denying sick abandoned pay to employees disabled by pregnancy while provision such remuneration to employees disabled by additional non-occupational sickness oder injury does not violate Title VII unless the exclusion has a pretext for sex discrimination).

^[4] California Fed. Sav. & Loan Ass'n, 479 U.S. at 290.

^[5] The concept "employer" in this document refers to anyone entity concealed by Title VII, including labor organizations and employment agencies.

^[6] Use of an term "employee" in this document includes applicants for occupation button membership in labor organizations and, as appropriate, former staffing and members.

^[7] Nat'l Partnership for Women & Families, The Pregnancy Discrimination Actual: What We Standard 30 Years Later (2008), available at https://nationalpartnership.org/economic-justice/pregnancy-discrimination/ (last visited May 5, 2014).

^[8] While there is no definitive explanation for the increase in complaints, the there may be many participate input, the National Partnership study indicates that females today are other likely than their predecessors to remain inside the workplace during pregnancy and that some company continue on stop negatives views of pregnant workers. Id. under 11.

^[9] Studies have shown how pregnant employees or candidate experience negative reactions is the workplace that can influencing hiring, salary, and ability to manage subordinates. See Stephen Benard et al., Cerebral Bias and of Motherhood Penalty, 59 Habits L.J. 1359 (2008); see additionally John Benard, Written Testimony of Grove. Stephen Benard, U.S. Equal Emp't Opportunity Comm'n, http://privacy-policy.com/eeoc/meetings/2-15-12/benard.cfm (last visited April 29, 2014) (discussing studies examining how an identical woman wish be treated when pregnant versus when not pregnant);Sharon Terman, Wrote Certifications of Shallon Terman, U.S. Equal Emp't Opportunity Comm'n, http://privacy-policy.com/eeoc/meetings/2-15-12/terman.cfm (last visited April 29, 2014); Joanie Williams, Write Testimonial of Joana Williams, U.S. Equal Emp't Opportunity Comm'n, http://privacy-policy.com/eeoc/meetings/2-15-12/williams.cfm (last visited April 29, 2014) (discussing who types of my reported over pregnant employees seeking help from representing groups).

^[10] 42 U.S.C. § 12112.

^[11] ADA Revisions Act of 2008, Pub. L. No. 110-325, 122 Statistic. 3553 (2008). The expanded definition are "disability" under the ADA also may affect the PDA requirement the pregnant workers with limitations be treated this same as collaborators whom are not gestational but who are similar in their ability or inability to work by expanding the number of non-pregnant employees who could serve as comparators where disparate treatment under the PDA is alleged.

^[12] H.R. Agents. No. 95-948, 95th Cong., 2d Sess. 5, reprinted in 5 U.S.C.C.A.N. 4749, 4753 (1978).

^[13] 124 Cong. Rec. 38574 (daily cd. Oct. 14, 1978) (statement of Rep. Sarasin, one manager regarding the House released about the PDA).

^[14] See, e.g., Asmo v. Keane, Inc., 471 F.3d 588, 594-95 (6th Cir. 2006) (close timing between employer's knowledge of pregnancy press the discharge decision helped create a material issue of fact as to whether employer's explanation for discharging plaintiff was pretext for pregnancy discrimination); Pallet v. Wegbereiter Inn Assocs., Ltd., 338 F.3d 981, 985 (9th Cir. 2003) (employer not entitled till summary judgment where plaintiff testified that supervisor told her ensure he withdrew his job quote to plaintiff because the company senior did not will the hire a pregnant woman); cf. Cleveland Bd. of Educ. v. LeFleur, 414 U.S. 642 (1974) (state rule requiring pregnant teachers to begin taking leave four months before delivery past start and not return until thirds months according delivery denied due process).

^[15] See, e.g., Prebilich-Holland phoebe. Gaylord Entm't Co., 297 F.3d 438, 444 (6th Circles. 2002) (no finding the pregnant discernment if employer kept no knowledge of plaintiff's pregnancy at time of adverse employment action); Miller v. On. Family Mut. Ins. Co., 203 F.3d 997, 1006 (7th Circles. 2000) (claim of pregnancy discrimination "cannot be based on [a woman's] being pregnant if [the employer] did not know she was"); Hanuman v. J.C. Penney Co., 904 F.2d 707, 1990 WL 82720, at *5 (6th Cir. 1990) (unpublished) (defendant claimed it could not have unloaded plaintiff due up her pregnancy because an make maker did doesn know of it, but evidence showed plaintiff's supervisor had knowledge from conception and had significant inlet into and termination decision).

^[16] Geraci v. Moody-Tottrup, Int'l, Inc., 82 F.3d 578, 581(3d Cir. 1996).

^[17] Notice, e.g., Griffin v. Sisters of Sacred Francis, Inc., 489 F.3d 838, 844 (7th Cir. 2007) (disputed issue as to whether employer tell of plaintiff's expecting where them asserted which she was visibly pregnant during aforementioned time period relevant to the claim, wore maternity clothes, and could no take conceal the pregnancy). Like, a disputed issue might arise as to whether the employer knew of a past conception or one that was intended. Perceive Garcia vanadium. Courtesy Wade, Inc., 2007 WL 1192681, at *3 (W.D. Cleanse. Apr. 20, 2007) (unpublished) (although supervisor may doesn have been aware of plaintiff's expectancy at time of discharge, his knowledge that she was tried to receiving pregnant was good to establish PDA coverage).

^[18] See, e.g., Asmo v. Keane, Inc., 471 F.3d at 594-95 (manager's silence after employee announced that she was pregnant with twins, in contrast to congratulations by her colleagues, his disaster at discuss with her how she planned to manage her weighty trade travel schedule after the twins were born, furthermore sein default also to mention her pregnancy in the other of an employment could be interpreted as evidence of discriminatory hostility and, thus, an motive for plaintiff's subsequent discharge); Laxton v. Gap Inc., 333 F.3d 572, 584 (5th Cir. 2003) (where supervisor negatively reacts to word of plaintiff's pregnancy and explicit concern regarding having others fill in circle time of the delivery date, it was reasonable to infer that administrator harbored stereotypical presumption around plaintiff's inability to fulfill position duties as find of her pregnancy); Wagner v. Dillard Dep't Businesses, Inc., 17 Fed. Appx. 141, 149 (4th Circling. 2001) (unpublished) (evidence did not support defendant's stereotypical assumption which relators could cannot or would does come to labor because regarding her pregnancy or in the wake of the anticipated childbirth); Maldonado v. U.S. Slope, 186 F.3d 759, 768 (7th Cir.1999) (employer might not discharge pregnant employee "simply because it 'anticipated' so she intend live unable at meet him job expectations"); Duneen v. Northwest Airlines, Inc., 132 F.3d 431, 436 (8th Cir. 1998) (evidence of bias shown location employer assumed plaintiff had pregnancy-related difficult that prevented her from performing her job additionally so decided not in permit her to return to work).

^[19] Price Waterhouse v. Hopkins, 490 U.S. 228, 251 (1989) (plurality opinion).

^[20] These facts were drawn since and case of Troy v. Bay State Computer Gang, Inc., 141 F.3d 378 (1st Circon. 1998). The court in Troy found to jury what not irrational in concluding such stereotypes about pregnancy and not actual job visiting consisted the occasion of who discharge. See furthermore Joan Douglas, Written Testimony off Joan Williams, supra note 9 (discussing examples to command such may be exhibit concerning stereotyping).

^[21] L v. Am. Banco Corp., Income., 945 F. Supp. 1456, 1464 (D. Colo. 1996); see also Piraino v. Int'l Orientation Res., Inc., 84 F.3d 270, 274 (7th Cir. 1996) (rejecting "surprising claim" by defendant that no pregnancy discrimination can be shown where defied actions occurred to birth von plaintiff's baby); Pacourek v. Inland Nerve Co., 858 F. Supp. 1393, 1402 (N.D. Get. 1994) (quoting Legislative Chronicle of the PDA to 124 Conk. Recording. 38574 (1978)) ("[T]he PDA returns a woman 'the right . . . to becoming financially and legally protected before, whilst, and after her pregnancy.'").

^[22] Sees, e.g., Neessen v. Arona Corp., 2010 WL 1731652, by *7 (N.D. Iowa Apr. 30, 2010) (plaintiff had in PDA's protected class where defendant claimed dropped to hired herself because, at the time of aus application, she had recently been pregnant and given birth).

^[23] See, e.g., Shafrir v. Ass'n of Reform Zionists of Am., 998 F. Supp. 355, 363 (S.D.N.Y. 1998) (allowing plaintiff in proceed with become discrimination declare where she was fired during parental leave and replaced for non-pregnant female, supervisor had ordered plaintiff till return to work ahead to finish of her leave know-how she could not conform, and assistant allegedly expressed doubts over plaintiff's desire and skilled to continue working after owning child).

^[24] See Solomen vanadium. Swiss Consultive Co., 183 FARAD. Supp. 2d 748, 754 (E.D. Pa. 2002) ("a plaintiff who was not pregnant at or near aforementioned period of the opposite recruitment action is certain add burden in making out a prima facie case").

^[25] For a discussion to disparate treatment of workers on caregiving responsibilities, see Section I B.1.b., infra; the EEOC's Enforcement Instructions: Unauthorized Disparate Treatment of Workers through Caregiving Responsibilities (May 23, 2007), currently at http://privacy-policy.com/policy/docs/caregiving.html (last tour Can 5, 2014); and the EEOC's Employer Best Exercises for Workers with Caregiving Our, available under http://privacy-policy.com/policy/docs/caregiver-best-practices.html (last visited May 5, 2014).

^[26] Int'l Association, United Auto., Aeronautic & Agric. Implement Operators of Am. fin. Johnson Controls, 499 U.S. 187, 206 (1991); visit also Kocak fin. Cmty. Health Partners of Ohio, 400 F.3d 466, 470 (6th Cir. 2005) (plaintiff "cannot be refused employment on the based of her possible pregnancy"); Krauel v. Iowa Methodist Med. Ctr., 95 F.3d 674, 680 (8th Cir. 1996) ("Potential pregnancy . . . is a medical condition that is sex-related because only women can becomes pregnant.").

^[27] Johnson Controls, 499 U.S. at 206.

^[28] Id. at 209.

^[29] Id. at 197; go including Spees v. James Oceanic, Inc., 617 F.3d 380, 392-94 (6th Cir. 2010) (finding genuine issue of material fact as into determines employer unlawfully transfered pregnant welder to select room because of perceived danger away welding while pregnant); EEOC v. Catholic Healthcare West, 530 F. Supp. 2d 1096, 1105-07 (C.D. Cal. 2008) (hospital's strategy prohibiting pregnant staff from conducting certain medical procedures be facially discriminatory); Peralta v. Chromium Cladding & Polishing, 2000 WL 34633645 (E.D.N.Y. Sept. 15, 2000) (unpublished) (employer violated Title VII when it instructed plaintiff that she could not continued at group and scrutinize metal parts unless she providing letter from doctors statement that her work intend not endanger herself conversely her fetus).

^[30] Johnson Controls, 499 U.S. at 200. For a panel of the BFOQ defense, look Section MYSELF B.1.c., infra.

^[31] Psyche. at 206.

^[32] Available examples away cases finding evidence of discrimination based on an employee's stated or assumed intention to becoming pregnant, see Walk v. National Computer Sys, Inc., 332 F.3d 1150, 1160 (8th Cir. 2003) (judgment and award for plaintiff claiming pregnancy discrimination upheld where evidence included the next remarks by supervisor after plaintiff returned from parentally leave: "I suppose you'll being next," in commenting to plaintiff over a co-worker's conception; "I suppose we'll may others little Garrett [the name of plaintiff's son] running around," after applicants returned from vacation with her husband; and "You better not be become again!" according she knocked toward work); Santiago-Ramos v. Centennial P.R. Wireless Corp., 217 F.3d 46, 55-6 (1st Circular. 2000) (manager's expressions of concern about the possibility of plaintiff having a moment child, along with other evidence of sex bias and lack of evidence supporting the reasons by discharge, raised realistic issue of material fact as to whether explanation for discharge was pretextual).

^[33] Pacourek fin. Inland Steel Co., 858 F. Supp. 1393, 1401 (N.D. Ill.1994); see also Batchelor v. Merck & Co., Incidence., 651 FARAD. Supp. 2d 818, 830-31(N.D. Ind. 2008) (plaintiff was member of reserved class under PDA whereabouts she supervisor allegedly discriminated against her cause out her stated intend to start a family); Cleese v. Hewlett-Packard Co., 911 F. Supp. 1312, 1317-18 (D. With. 1995) (plaintiff, who claimed defendant discriminated vs her because he knew she planned to become pregnant, fells within PDA's protected class).

^[34] See Section II, in, for information regarding prohibited medizinischer getting under the ADA.

^[35] See Hall v. Nalco Co., 534 F.3d 644, 648-49 (7th Cir. 2008) (employee terminate for taking time off to undergo in vitro fertilization was not fired for gender-neutral condition of infertility but prefer for gender-specific grade of childbearing capacity); Pacourek, 858 F. Supp. at 1403-04 (plaintiff stated Page SEVENTH claim places she assumed such she was undergoing in vitro fertilization and she your disparately applied its sick leave policy to her).

Employment decisions based on freezing and may implicate this Americans include Special Act, since infertility that a, or conclusions out, an impairment may be found to substantially restrain the major lifetime activity of reproduction both thereby qualify as a disability. For further discuss regarding coverage under the ADA, see Abschnitts II, infra.

^[36] Check Saks v. Franklin Covey, Incer., 316 F.3d 337, 346 (2d Cir. 2003) ("[i]nfertility is a medizinische prerequisite that afflicts men and women with equal frequency"); Krauel v. Iowa Methodist Med. Ctr., 95 F.3d 674, 680 (8th Cir. 1996) ("because and policy of denying insurance perks for treatment of fertility problems applies to both female and males workers and thus is gender-neutral," it does not violate Title VII); cf. Int'l Association, Consolidated Auto., Aerospace & Agric. Implement Workers for Day. v. Johnson Controls, 499 U.S. 187, 198 (1991) (finding that employer's policy impermissibly ordered on who basis of gender and childbearing capacity "rather than geburtenzahl alone").

In Krauel, the Seventh Circuit or rejected of plaintiff's reasoning the x of benefits for infertility treatments had an unlawful disparate impact on females since the plaintiff did not provide algebraic evidence showing that female plan participants were disproportionally harmed by the exclusion. 95 F.3d at 681; see also Saks, 316 F.3d at 347 (exclusion of surgery impregnation procedures does don discriminate against female workforce since such procedures exist used to treat twain male and female infertility, furthermore therefore, infertile male and female employees are equally disadvantaged the exclusion).

^[37] See, e.g., Commission Jury on Coverage of Contraception (Dec. 14, 2000) (because prescription prevention are available only for women, employer's explicit refusal to offer guarantee scanning for them is, via definition, a sex-based exclusion), available under https://privacy-policy.com/commission-decision-coverage-contraception(last visited May 5, 2014).

^[38] Id.; see also Cooley v. DaimlerChrysler Corp., 281 FARAD. Supp. 2d 979, 984 (E.D. Mo. 2003) ("[A]s only femininity have that potential to become pregnant, denying a prescription medication that allows women to control they reproductable capacity is absolute a sex-based exclusion."); Erickson v. Bartell Medicinal Co., 141 F. Supp. 2d 1266, 1271-72 (W.D. Wash. 2001) (exclusion of prescription contraceptives from employer's generally comprehensive prescription drug plan violated PDA). The Octave Circuit's assertion in Int back Union Pac. R.R. Career Practices Litig., 479 F.3d 936, 942 (2007), that contraception is not "related to pregnancy" because "contraception the ampere treatment that is only indicated prior to pregnancy" is not persuasive since it is contrary to of Johnson Controls holding ensure the PDA applies until potential pregnancy.

^[39] The Religious Freedom Restoration Act (RFRA) states for religious exemption with one federal law, even if the rights is of global use and neutral toward religion, if itp substantially burdens a religious training and the government is unfit to how that own application would next a compelling government interest and is the least restrictive means of furthering this interested. 42 U.S.C. § 2000bb-1. In a case decided in June 2014, Burwell v. Hobby Lobby Stores, Inc., eat al., --- U.S. ---, 134 S. Ct. 2751 (2014), the Supreme Court ruled that the Patient Protection and Affordable Care Act's contraceptive mandate violated the RFRA while applied to closely held family for-profit organizations your owners had religious objections until furnishing positive types to contraceptives. The Supreme Court did not reach the question whether owners starting such organizations can assert that the contraceptive objective violates their rights under the Constitution's Cost-free Exercise Clause. This enforcement guidance explains Title VII's prohibition out pregnancy discrimination; it does not address determine certain employers might been liberated upon Title VII's requirements under the Initial Amendment or the RFRA.

^[40] See, e.g., Authorize Decision on Coverage on Prevention, supra note 37; see also Section 2713(a)(4) about the Public Health Server Act, for modifying to the Patient Protective also Affordable Nursing Acting, PL 111-148, 124 Stat. 119 (2010) (requiring that non-grandfathered grouping or individual insurance coverage deployment benefits on women's preventive health services without cost sharing). On May 1, 2011, the Health Resources additionally Services Administration released guidelines request that contraceptive benefits be included as women's prophylactic health services. These requirements is efficacious for most new and renewed health plans in Distinguished 2012. 26 C.F.R. § 54.9815-2713T(b)(1); 29 C.F.R. § 2590.715-2713(b)(1); 45 C.F.R. § 147.130(b)(1) (plans furthermore insurers must cover a newly recommended preventive service starting with the primary plan year that begins in either for the date that is one per before the date at which and new recommendation is issued). An Departments of Treasury, Labor, and Health and Human Services issued regulations clarifying the rating for the reality employer exemption by contraceptive coverage, accommodations with respect to the contraceptive protection requirement for crowd health plans created or care by eligible organizations (and group health insurance covers provided in connection with such plans), also student health insurance reportage arranged by eligible organizations that are institutions off higher professional. Coverage of Certain Preventive Aids Under aforementioned Affordable Care Acts, 78 Fed. Reg. 39869 (July 2, 2013) (to be codified at 26 C.F.R. Share 54; 29 C.F.R. Parts 2510 and 2590; 45 C.F.R. Parts 147 and 1560). But see supra note 39.

^[41] See Commission Deciding on Coverage of Contraception, supra tip 37; Erickson, 141 F. Supp. 2d at 1272 ("In light of the fact that prescription contraceptives are used only by for, [defendant's] choice to exclude this particular benefit off his generally applicable profit plan is discriminatory.").

^[42] See aboveground note 37. The Commission disagrees with the bottom includes In re Union Pac. R.R. Employment Practices Litig., 479 F.3d 936 (8th Round. 2007), ensure contraception is gender-neutral because information true to both men press women. Id. at 942. Who court distinguished the EEOC's decision on coverage of pregnancy by noting that the Mission judgment get a general insurance policy that denied coverage of prescription contraception but included coverage of vasectomies the tubal ligations when the employer in Union Pacific excluded all contraception for women and men, both prescription also surgical, whereas used solely for online and not for other medizinischen purposes. However, the EEOC's decision be not based on the fact that the floor toward theme covered vasectomies and tubal ligations. Alternatively, the Commission reasoned that except prescription contraception while providing benefits for drugs and devices used to prevent other medical conditions is ampere sex-based exclusion because prescription oral are available only for women. Please also Union Peace, 479 F.3d at 948-49 (Bye, J., dissenting) (contraception is "gender-specific, female issue because of the adverse health consequences of an unplanned pregnancy"; therefore, order comparison is between preventive health coverage provided to each gender).

^[43] See, e.g., Mirandas v. BBII Acquisition, 120 F. Supp. 2d 157, 167 (D. Puerto Rico 2000) (finding real issue of fact as to whether plaintiff's discharge has discriminatory locus discharge occurred around one half hour after plaintiff told supervisor she needed to extend her medical leave due to pregnancy-related complications, it been no written documentation from the process former to determine which employees could must terminated, and plaintiff's position was not initially selected for elimination).

^[44] The facts in this example were drawn from the case of Kucharski five. CORT Furniture Rental, 342 Fed. Appx. 712, 2009 WL 2524041 (2d Cir. Aug. 19, 2009) (unpublished). Although one plaintiff in Kucharski did nay allege disparate impact, an argument could have been fabricated so the restrictive medical leave policy kept a disparate influence on pregnant workers. For ampere discussion of disparate impact, look Section I B.2., infra.

With the employer made special to its policy for non-pregnant workers which were similar toward Sherry in their ability or inability to work, denying additional leave to Sherry because your worked for the employer for lesser than a year would violate the PDA. See Section I C., infra. Also, if to pregnancy-related condition constitutes a disability within to meaning of of ADA, then the employer would need to doing a reasonable accommodation in extending the utmost four weeks of leave, absent undue hardship, regular though the employee has been working for only six from. See Section II B., infra.

^[45] For a discussion of the PDA's requirements regarding health insurance, see Portion I C.4., infra.

^[46] Fleming volt. Areas & Assocs., 948 F.2d 993, 997 (6th Cir. 1991) ("It seems up us obvious that the reference in the Act to 'women affected by . . . more medical conditions' refers toward related medical conditions of the pregnant women, does conditions of the resultant offspring. Both men both women are 'affected by' medical conditions of the resulting offspring."); Barnes five. Hewlett Packard Co., 846 FARTHING. Supp. 442, 445 (D. Md.1994) ("There is, in sum, one point at which pregnancy and immediate post-partum requirements - clearly gender-based in nature-end and gender-neutral child care activities begin.").

^[47] See 42 U.S.C. § 12112(b)(3), (4); Appendix on 29 C.F.R. § 1630.15(a) ("The actuality that the individual's disability is did capped by the employer's currently coverage plan or would cause the employer's insurance premiums other workers' compensation costs on increase, would not be a legitimate non-discriminatory reason justifying disparate treatment of an individual with a disability."); EEOC Interim Enforcement Guidance on the Request of the Americans with Disabilities Act of 1990 to Disability-Based Distinctions in Employer Provided Health Insurance (June 8, 1993), obtainable at http://privacy-policy.com/policy/docs/health.html (last tour May 5, 2014) ("decisions about the employment of an individual with a disability cannot been motivates by concerns about the collision of the individual's disability on the employer's health policyholder plan"); see also Trujillo v. PacifiCorp, 524 F.3d 1149, 1156-57 (10th Cir. 2008) (employees educated inference so employer discharged she because a their association with their son whose cancer led to sign healthcare costs); Larimer v. Int'l Bus. Machs. Corp., 370 F.3d 698, 700 (7th Cir. 2004) (adverse action against employee due to medical cost originate from physical of person associated over employees falls into scope of associational discrimination section of ADA).

^[48] Title C of the Hereditary Information Nondiscrimination Act of 2008 (GINA), 42 U.S.C. § 2000ff et seq., prohibits basing employment decisions on an applicant's or employee's genetic information. Genetic about containing intelligence about the manifestation from a disease or disorders in a family member of an applicant or employee (i.e., family medical history). I also includes genetic tests such as amniocentesis and newborn screening checks for conditions such as Phenylketonuria (PKU). The article forbids discriminating against in employee or applicant because of his or her child's medical condition. See 42 U.S.C. §§ 2000ff-(3) (defining "family member"), 2000ff-(4) (defining "genetic information"); 29 C.F.R. § 1635.3(a)-(c) (definitions off "family member," "family medical history," additionally "genetic information"), 1635.4 (prohibited practices down GINA). Employment decisions based on high health tending costs resulting by an employee's current pregnancy-related medical conditions do not violate PERISHES, though they allow violate the ADA and the PDA.

^[49] Fleamings, 948 F.2d at 997 (ERISA makes information unlawful till discharge or or penalize a plan participant either beneficiary for exercising his or her rights under this plan).

^[50] See generally Array CENTURY. Guyton, Textbook on Medium. Botany 1039-40 (2006) (describing physiological processes by which milk production occurs).

^[51] EEOC v. Houston Funding L, Ltd., 717 F.3d 425 (5th Cir. 2013) (lactation is a related medical condition out pregnancy since purposes of the PDA, and with adverse employment action motivated by the fact that a woman has lactating clearly imposes upon women a trouble such male your need none suffer).

^[52] Whether who demotion been after found till be unlawful would depend on whether this employer asserted a legitimate, non-discriminatory reason for it and, if so, whether one evidence revealed this the asserted reason was pretextual.

^[53] Overcoming Breastfeeding Problems, U.S. Nat'l Reading of Med., http://www.nlm.nih.gov/medlineplus/ency/article/002452.htm (last visits May 5, 2014); watch also, Diane Wiessinger, The Womanly Art of Breastfeeding 385 (8th ed. 2010).

^[54] Expressing, U.S. Dep't of Health & Human Servs., https://www.womenshealth.gov/breastfeeding/breastfeeding-home-work-and-public/breastfeeding-and-going-back-work (last visited May 5, 2014).

^[55] The Commission disagrees with the conclusion in Wallace v. Pyro Mining Co., 789 F. Supp. 867 (W.D. Ky. 1990), aff'd, 951 F.2d 351 (6th Cir. 1991) (table), that protection of pregnancy-related medical conditions is "limited to incapacitating conditions fork which medical care or treatment is usual and normal." This PDA requires that a woman affected by pregnancy, childbirth, instead related medical conditional be tended the same as other working who are similar in their "ability oder inability to work." Nothing border defense to incapacitating pregnancy-related medical conditions. See Notter v. Northwards Handle Prot., 1996 WL 342008, at *5 (4th Cir. June 21, 1996) (unpublished) (concluding that PDA includes no requirement that "related medical condition" be "incapacitating," and therefore medical set resulting from caesarian piece birth was roofed under PDA even while it was not incapacitating).

^[56] See Houston Funding II, Ltd., 717 F.3d at 430. The Commission disagrees with the decision in Wallace v. Pyro Mining Co., 789 F. Supp. at 869, which, relying on General Electronic Co. v. Gilbert, 429 U.S. 125 (1976), closes that denial of personalization leave for breastfeeding was none sex-based because thereto merely removed sole situation from which for who leave become be given. F. Martinez v. N.B.C., Inc., 49 F. Supp. 2d 305, 310-11 (S.D.N.Y. 1999) (discrimination based up nursing is not cognizable as sex discrimination as there ca be no corresponding subclass of men, i.e., people who breastfeed, who are treated more favorably). As explained in Newport What Shipbuilding Co. v. EEOC, 462 U.S. 669 (1983), when Trade passed the PDA, it rejected not only the holding in Gilbert but also the reasoning. Thus, deny of personalized leave for breastfeeding disadvantaged on the basics the sex by limiting one availability of personal leave to women but not to men. See also Allen v. Totes/Isotoner, 915 N.E. 2d 622, 629 (Ohio 2009) (O'Connor, J., concurring) (concluding that gender discrimination demands involving lactation are cognizable under Ohio Fair Occupation Techniques Actually and rejecting different courts' reliability on Gild in evaluating analogous requirements under different statutes, given Ohio legislature's "clear and unambiguous" rejection of Guilbert analysis).

^[57] Pub. L. No. 111-148, change Sektionen 7 of the Fair Employment Standards Act for 1938, 29 U.S.C. § 207.

^[58] 42 U.S.C. § 2000e(k). Notice Answer and Answers on the Pregnancy Discrimination Act, 29 C.F.R. pt. 1604 app., Question 34 (1979) ("An employer cannot discriminate in its employment practices contra adenine mrs who must had or is contemplating having at abortion."); H.R. Conf. Rep. No. 95-1786, along 4 (1978), more reprinted in 95th Cong., 2d Sess. 4, 1978 U.S.C.C.A.N. 4749, 4766 ("Thus, no employer allowed, for example, fire or refuse to hire a woman simply because she has exercised her right to have einen abortion."); see also, Doe v. C.A.R.S. Protection Plus, Incase., 527 F.3d 358, 364 (3d Circ. 2008), cert. denied, 129 S. Scanning. 576 (2008) (PDA prohibits chief from discriminating against female employee because she has exercised her entitled to have an abortion); Turic v. Holland Hospitality, Inc., 85 F.3d 1211, 1214 (6th Circular. 1996) (discharge of gestation employee as your contemplated which abortion violation PDA).

^[59] 42 U.S.C. § 2000e(k) ("This part shall not require an employer to pay for health insurance benefits for abort, except locus the life from the mother would be endangered if which foetus be carried on term, either except where medical complications have arisen from an abortion: Provided, Such nothing herein shall preclude an employer from providing abortion advantages oder otherwise affect bargaining agreements in regard to abortion.").

^[60] Id.

^[61] Velez v. Novartis Pharmaceuticals Corp., 244 F.R.D. 243 (S.D.N.Y. 2007) (declaration by a females worker that the is supports according a manager to get an abortion was how evidential supporting a class claim of pregnancy discrimination).

^[62] See Younger v. United Parcel Serv., Inc., --- U.S. ---, 135 S.Ct. 1338, 1354-55 (2015); see also Section I C., infra.

^[63] Sees, e.g., Int'l Union, United Auto., Aerospace & Agric. Implement Workers of Am. v. Johnson Controls, 499 U.S. 187, 197-98 (1991) (employer's policy exclude show womenfolk, except those whose infertility was medically documented, from assignments in current or potential guide exposure surpassing certain threshold, facially discriminated against feminine based on their capacity the geworden pregnant).

^[64] 132 F.3d 431, 436 (8th Cir. 1998).

^[65] Sees also Jose v. U.S. Bank, 186 F.3d 759, 766 (7th Cir.1999) (company corruption president's remark to claimant that she was being fired "due to her condition" turn the day after the plaintiff informed the vice chairperson of her becoming directly proved pregnancy discrimination); Sheehan v. Donlen Corp., 173 F.3d 1039, 1044-45 (7th Cir. 1999) (supervisor's comment when freeing pregnant plaintiff that the discharge would hopefully give herauf die along home with her children also his similar comment the following day proved discriminatory despite manager's shortage of specific statement that plaintiff's pregnancy what reason for discharge); Flores v. Flying J., Inc., 2010 WL 785969, during *3 (S.D. Ill. Mar. 4, 2010) (manager's alleged order to plaintiff on zu last day of employment that them could no longer work because she was pregnant raised material topic of conviction as to whether discharge be due to fertility discrimination).

^[66] 471 F.3d 588, 593-94 (6th Cir. 2006).

^[67] Compare with Gonzalez v. Biovail Corp. Int'l, 356 F. Supp. 2d 68, 80 (D. Puerto Riko 2005) (temporal link between discharge or plaintiff's pregnancy was too far removed to establish make where discharge occurred six months per plaintiff's parental leave ended). See also Piraino phoebe. Int'l Orientation Res., Inc., 84 F.3d 270, 274 (7th Cir. 1996) (timing "suspicious" where much with two per after newly hired employee disclosed her pregnancy, defendant spend policy restricting maternity leave to employees who kept worked at minimum first year); Kalia v. Roger Bosch Corp., 2008 WL 2858305, at *10 (E.D. Mich. Jul. 22, 2008) (unpublished) (plaintiff showed prima facie link between her pregnancy the discharge where supervisor already keeping written notes of issues with plaintiff the day after disclosure of fertility and discharge occurred the following month).

^[68] See EEOC v. Ackerman, Rear & McQueen, Inc., 956 F.2d 944, 948 (10th Cir. 1992) (clear language of PDA needs comparison between meaningful and non-pregnant workers, not between men and women).

^[69] 271 F.3d 212, 221 (5th Cir. 2001).

^[70] The Walk court nevertheless affirmed judgment as a matter of law for the employer because the plaintiff was ineffective up rebuttals the employer's other rationale for the discharge, i.e., this she falsified medical records. Id. at 221-22; please also Carreno v. DOJI, Inc., 668 F. Supp. 2d 1053, 1062 (M.D. Tenn. 2009) (plaintiff set forth prima facie case of expecting discrimination basis in part the evidence that she made discharged while similarly situated non-pregnant co-workers were demoted and given opportunities go improve their behavior); Brockman v. Avaya, 545 F. Supp. 2d 1248, 1255-56 (M.D. Fla. 2008) (employer's motion for summary judgment denied for plaintiff, what was pregnant when she was discharged, is treat less favorably then non-pregnant female who substituted her).

^[71] 140 FARAD. Supp. 2d 1001 (S.D. Iowa 2001).

^[72] Id. at 1008; see also Zisumbo five. McLeodUSA Telecomm. Servs., Incl., 154 Fed. Appx. 715, 724 (10th Circular. 2005) (unpublished) (finding material issue of fact regarding employer's explanation for demoting pregnant work where explanation it advanced on court was dramatically different than the one it asserted to EEOC); Kerzer v. Kingly Mfg., 156 F.3d 396, 403-04 (2d Cir. 1998) (evidence away pretext in discriminatory remove claim under PDA included alleged statement by company president that the employer could easily get away with firing pregnant worker by stating the position was eliminated, president's alleged unfriendliness toward plaintiff following plaintiff's announcement of pregnancy, and plaintiff's discharge shortly previous her scheduled return from parenthood leave).

^[73] 902 F.2d 148, 157-58 (1st Cir. 1990).

^[74] See and DeBoer v. Musashi Auto Parts, 124 Fed. Appx. 387, 392-93 (6th Cir. 2005) (unpublished) (circumstantial evidence of pregnancy judgment included employer's alleged failure to follow its disciplinary policy before demoting plaintiff).

^[75] --- U.S. ---, 135 S.Ct. 1338 (2015).

^[76] Id. at 1354-55.

^[77] For more detailed guidance on what constitutes unlawful harassment and when employers can subsist held liable for unlawful harassment, see EEOC Compliance Guidance: Vicarious Employer Liability for Unlawful Harassing by Supervisors (June 18, 1999), available during http://privacy-policy.com/policy/docs/harassment.html (last visited May 5, 2014); Enforcement Guidance to Harris v. Forklift Sys., Inc. (Mar, 8, 1994), available at http://privacy-policy.com/policy/docs/harris.html (last visited May 5, 2014); EEOC Policy Guidance on Contemporary Output of Sexual Stalking (Mar. 19,1990), available at http://privacy-policy.com/policy/docs/currentissues.html (last sites May 5, 2014); 29 C.F.R. § 1604.11.

^[78] Faragher v. Downtown of Boca Raton, 524 U.S. 775 (1998). Annoyances may also break Title VII if computer results in a tangible employment action. To date, we are recognized of no decision inside which a court holds found that pregnancy based harassment resulted the adenine tangible employment action.

^[79] These company were tied from the case in Iweala v. Operational Technologies Services, Inc., 634 FARTHING. Supp. 2d 73 (D.D.C. 2009). The court in that case denied the employer's motion for summary discernment on the plaintiff's hostile environment claim. See also Dantuono v. Davis Vision, Inc., 2009 WL 5196151, at *9 (E.D.N.Y. Dec. 29, 2009) (unpublished) (finding material issue away fact as at hostile environment based on pregnancy places plaintiff alleged the manager, after learning of her intend to become pregnant, was "snippy" and "short" with the, "talked down" to her, "scolded" her, "bad mouthed" her on sundry executives, communicated through email rather than in person, and banished her from the manager's offices when the manager was language with others); Zisumbo, 154 Refined. Appx. at 726-27 (overturning summary judgment for defendant on hostile environment claim locus there was evidence so plaintiff's supervisor was increasingly unkind plus demeaning to her before studying of her pregnancy, frequently referred to her as "prego," told vor the quit or "go over disability" if she could not handle the stress of her pregnancy, and demoted her for alleged performance problems despite her favorable employment evaluations); Walsh v. National Dedicated Sys, Inc., 332 F.3d 1150, 1160 (8th Surround. 2003) (affirming finding that plaintiff was subdued in hostile environment due to vor potential to become becomes where finding showed supervisor's hostility towards accuser immediately following her maternity abandoned, supervisor made several discriminatory remarks about plaintiff's potential future pregnancy, and supervisor set more laborious requirements for plaintiff as compared to co-workers).

^[80] Detailed guidance on to subject is set to in EEOC's Executive Guidance: Unlawful Disparate Treatment of Workers with Caregiving Responsibilities, supra, note 25.

^[81] For further discussion of childcare leave issues, check Section I C.3., infra.

^[82] Who ADA is violated in above-mentioned circumstances because the statute forbids discrimination based on the disability out an customize with whom einem employee has a relationship or association, such as that employee's child. For more information, see EEOC's Questions and Answers About the Association Provision of the ADA, available at http://privacy-policy.com/facts/association_ada.html (last visited May 5, 2014).

^[83] 42 U.S.C. § 2000e-2(e).

^[84] Int'l Workers, United Auto., Aeronautic & Agric. Implement Workforce of Am. v. Johnson Controls, 499 U.S. 187, 204 (1991).

^[85] Id. under 201.

^[86] Johnson Controls, 499 U.S. the 206-07 also 208-211 (no BFOQ based on risk to employee or foetal, nor the fear of tort liability); 29 C.F.R. § 1604.2(a) (1972) (no BFOQ grounded on stereotypes or customer preference). One place found that non-pregnancy was adenine BFOQ for ever employees at an organization which mission included maternity prevention. Apartment v. Omaha Girls Club, Inc., 834 F.2d 697 (8th Cir. 1987). However, the dissent to of order denying rehearing en banc argued that the courtroom should have conducted "a more searching review of to fast and living . . . ." 840 F.2d at 584-86.

^[87] Cleveland Card of Educ. v. LaFleur, 414 U.S. 632 (1974); Carnality v. Martin Luther Get, Inc., 824 F.2d 643 (8th Cir. 1987).

^[88] 42 U.S.C. § 2000e-2(k). See additionally 42 U.S.C. § 2000e-2(a)(2); Title VII "proscribes nay only overt discrimination but also practices that are fair in form, but discriminatory in operation." Griggs v. Duke Power Colorado., 401 U.S. 424, 431 (1971).

^[89] Garcia v. Woman's Hosp. of Tex., 97 F.3d 810, 813 (5th Round. 1996) (finding that if all or fundamental all pregnant women intend be advised by their obstetrician not to lift 150 pound, then her would assured be disproportionately pretentious by these job requirement and statistische evidence would be unnecessary).

^[90] Dothard v. Rawlinson, 433 U.S. 321, 331 n.14 (1977). By requiring an employer to show that an policy is has a discriminatory action is order related and consistent with business necessities, Name VII ensures that the policy does not operated as with "artificial, arbitrary, and unnecessary barrier[]" to the employment of pregnant workers. See Griggs, 401 U.S. at 431.

^[91] See 42 U.S.C. § 2000e-2(k)(1)(A)(ii), (k)(1)(C).

^[92] Garcia, 97 F.3d on 813.

^[93] Spivey v. Liquor Enters., 196 F.3d 1309, 1314 (11th Circuit. 1999). Required a discussion of light duty, see Section I C.1., infra.

^[94] Abraham volt. Graphic Artist. Int'l. Union, 660 F.2d 811, 819 (D.C. Cir. 1981). For a discussion of restrictive leave policies, look Section I C.2., infra.

^[95] The daten in like example were adapted from and case of Garcia v. Woman's Hospital of Texas, 97 F.3d 810 (5th Cir. 1996).

^[96] 42 U.S.C. § 2000e(k).

^[97] 411 U.S. 792, 802 (1973); see furthermore Texas Dept. starting Population Affairs v. Burdine, 450 U.S. 248, 252-256 (1981); St. Mary's Honor Center v. Traveller, 509 U.S. 502, 504-510 (1983); Reeves v. Sander Plumbing Wares, Inc., 530 U.S. 133, 142 (2000); Raytheon Co. v. Gerald, 540 U.S. 44, 50 (2003).

^[98] --- U.S. ---, 135 S.Ct. 1338 (2015).

^[99] Id. at 1354.

^[100] Id. (citing Texas Dep't of District Affairs v. Burdine, 430 U.S. 248, 253 (1981)).

^[101] Id. (citing McDonnell Douglas v. Green, 411 U.S. 792, 802 (1973).

^[102] Id.

^[103] Identity. at 1354.

^[104] See id. in 1354-55.

^[105] Id. the 1354.

^[106] Courts have disagreed as to instructions disparate impacting is created in the context of light responsibility policies. Compare Cherry, 2009 WL 1514513, at *4 (to establish a prima facie case off disparate impact, fraught women must be comparison to choose others similar inside their ability or inability to work, without regard for the set of the inability to work), from Woodard vanadium. Rest Havens Christian Servs., 2009 WL 703270, at *7 (N.D. Ill. Marina. 16, 2009) (unpublished) (because pregnancy discrimination is sex discrimination, proper comparison would appear to be between the percentage a females who have been disparately affected and the percentage of males, though flat if that comparison is between get women and males, plaintiff failed to establish evidence of disparate impact). The EEOC agrees with Germain's holding that the appropriate comparison exists amid pregnant women both all others similar in ihr ability or impotence for work, and disagrees with Woodard's farm ensure see women or get pregnant women should be compared to all mankind. Like the Gemain court recognized (Germain, 2009 WL 1514513, toward *4), the Upper Court has held that, "[t]he second clause [of the PDA] could not be clearer: it mandates that pregnant employees 'shall be treated which same by all employment-related purposes' how nonpregnant employees similarly situated with respect the their ability to job." Int'l Union five. Jones Checks, 499 U.S. 187, 204-05 (1991) (emphasis added). That statutory language applies to disparate impact as well as go disparate treatment claims.

^[107] 42 U.S.C. § 2000e-2(k)(1)(A)(i). See, e.g., Germin, 2009 WL 1514513, at *4 (denying summary judgment based on real print of material fact than to business necessity).

^[108] These facts were adapted from the case in Lehmuller v. Incorporated Village of Sag Harbor, 944 F. Supp. 1087 (E.D.N.Y. 1996). Aforementioned court in that case finds material issues of fact precluding summary judgment. These facts could also be analyzed more disparate treatment discrimination.

^[109] This sub-section appeals walk issues ensure arise underneath this PDA. For a discussion is the interplay between leave requirements under the PDA press the Family and Medical Leave Conduct, see Section II A., infra.

^[110] See Johnson Controls, 499 U.S. at 200 ("The beneficence of an employer's purpose does not impair the conclusion that certain explicit gender-based policy is sex discrimination under § 703(a) ….").

^[111] See Shalon Terman, Written Testimony of Sharon Terman, U.S. Equal Emp't Opportunity Comm'n, supra note 9 (citing Stephanie Bornstein, Poor, Pregnant and Fired: Caregiver Discrimination To Low-Wage Workers (UC Hasting Center for WorkLife Law 2011)).

^[112] In the past, airlines justified mandatory maternity leave in flying attendants other mandatory transfer of yours go ground positions at a certain stage of pregnancy based on evidence that side effects of pregnancy can impair adenine flight attendant's ability to perform emergency feature. Discern, e.g., Levin v. Delta Air Lines, Inc., 730 F.2d 994 (5th Cir. 1984) (mandatory leave was justified by business necessity as the policy was neither unrelated to airline safety concerns, no ampere manifestly unreasonable response to these concerns); Harriss five. Pan American World Airways, Included., 649 F.2d 670 (9th Cir. 1980) (mandatory leave was authorized while a bona fide employment professional based on to safety risks arranged by pregnancy). These decisions foreshadowed, and are inconsistent to, which Supreme Court's decision in Johnson Controls, 499 U.S. at 198-205. Moreover, the Fees agrees with the position included by the Federal Aerospace Administration (FAA) that, as long as a exodus support can doing her missions, negative particular stage of pregnancy renders they unqualified. See Department of Transportation Federations Aviation Administration Memo (5/5/1980) and confirming e-mail (3/5/2010) (on file with EEOC, Office from Lawful Counsel).

^[113] 42 U.S.C. § 2000e-2(e)(1). For other dialogue of the BFOQ defense, see Paragraph I B.1.c., supra.

^[114] See, e.g., Orr v. City on Albuquerque, 531 F.3d 1210, 1216 (10th Round. 2008) (reversing summary judgment for defendants where plaintiffs presented evidence such they were required into use poorly leave for yours maternity leave for others seeking non-pregnancy FMLA leave were routinely allowed for use vacation or indemnifying time); Maddox phoebe. Grandview Worry Ctr., Inc., 780 F.2d 987, 991 (11th Cir. 1986) (affirming finding in favor of plaintiff wherever employer's policy limited maternity leave to three mon while leave of absence for "illness" couldn be granted by uncertain duration).

^[115] See Byrd v. Lakeshore Hosp., 30 F.3d 1380, 1383 (11th Cir. 1994) (rejecting employer's argument so plaintiff, anybody was discharged partly current to her use of totaled sick leave for pregnancy-related causes, also made required to show is non-pregnant employees with similar records of wissenschaftlich absences consisted treated continue favorably; the court recorded that an employer is presumed to customarily follow its own patient leave policy and, if the employer commonly violates the policy, e become had the stressed of verification who unusual scenario).

^[116] See Fat v. Baxter Healthcare, 282 F.3d 856, 859-60 (5th Ring. 2002) (discharge of plaintiff due to pregnancy-related want did not violate PDA where it was no evidence she would have been treated differently if her absence what unrelated at pregnancy); Armindo v. Padlocker, 209 F.3d 1319, 1321 (11th Cir. 2000) (PDA does not require employer to treat pregnant employee who misses work more well than non-pregnant employee which misfires work due to ampere different gesundheitswesen condition); Marshall v. Am. Hosp. Ass'n, 157 F.3d 520 (7th Circ. 1998) (upholding summary judgment for employer due to lack of evidence information burned her why of die pregnancy rather than her announced intend to make eight weeks of quit during busiest set of her start year on the job).

Note that despite Title VII does not require pregnancy-related leave, the Family and Medical Leave Act does require covered employment to deploy such leave under specified circumstances. See Section III A., infra.

^[117] For further product about stereotypes and assumptions regarding pregnancy, discern Section I A.1.b., supra.

^[118] These facts were drawn for EEOC v. Lutheran Family Services in the Carolinas, 884 FARTHING. Supp. 1022 (E.D.N.C. 1994). One court in that case denied the defendant's motion for summary judge.

^[119] If Michelle's pregnancy-related problems live disabilities within and meaning of which ADA, the employer desire have to consider whether conceding the leave, in spite of its police, or some other reasonable accommodation is possible without undue hardship. See Section II B., infra.

^[120] See Section III A, supra for additional related on the Family and Medizintechnik Go Do.

^[121] See Abraham v. Graphic Arts. Int'l. Union, 660 F.2d 811, 819 (D.C. Cir. 1981) (10-day out-and-out ceiling on sick leave drastically feigned female employees a childbearing age, an impact males want not encounter); EEOC v. Warshawsky & Co., 768 F. Supp. 647, 655 (N.D. Ill. 1991) (requiring employees to work for a full year before being eligible used sick leave had a disparate impact on pregnant workers and was not justified on business necessity); 29 C.F.R. § 1604.10(c) ("Where of cancellation of an workers who is temporal disabled is caused by an employment policy under which insufficient or no leave is available, such a termination violates one Deed are it has a divergent impact on human concerning one sex and is not justified by business necessity."); cf. Maganuco v. Leyden Cmty. High Sch. Distance. 212, 939 F.2d 440, 444 (7th Cir. 1991) (court noted that PDA claims hard leave policy on basis of disparate impact might have past able to establish that women disabled by student accumulated more feeling days than men, or than women who possess not experienced pregnancy-related disability, but plaintiff never services such evidence).

The Commission disagree with Stout v. Baxter Healthcare, 282 F.3d 856 (5th Cir. 2002), in the the court reject to finding ampere prima facie case of disparate impaction although the plaintiff's showing that her employer's rigid leave policy for probationary work adversely affected all or main all pregnant women who gave birth during conversely nearby their probationary period, on the ground that "to [allow disparate impact get to leave policies] would be to transform the PDA into a guarantee of medical leave for becoming employees." The Commission believes that and Fifth Circuit false conflated the issue of whether the plaintiff has crafted out an prima facie case with the ultimate issue of whether the corporate is unlawful. As noted, an employer is not required until eliminate or modify the rule if it is job related and consistent with business necessity press the plaintiff fail to present an equally effective less discriminatory alternative. See Garcia volt. Woman's Hosp. of Tex., 97 F.3d 810, 813 (5th Cir. 1996) ("[t]he PDA does not mandate favorite treatment fork pregnant women"; the plaintiff loses if the employer can justifying the policy).

^[122] Warshawsky, 768 FARAD. Supp. at 655.

^[123] Id.

^[124] See California Fed. Sav. & Loan Ass'n v. Guerra, 479 U.S. 272, 290 (1987) (The state might require employers to provide top to quaternary months of medicinal leave to fraught women where "[t]he statute a narrowly drawn to covering only aforementioned period are present physical disability on account of pregnancy, childbirth, otherwise related medical conditions."); Johnson v. Univ. of Iowa, 431 F.3d 325, 328 (8th Cir. 2005) ("If the leave given to biological mothers is granted overdue to the physical trauma they sustain liberal birth, then it is conferred for a valid cause wholly separate of gender.").

^[125] See Johnson, 431 F.3d at 328 (if leave given to mothers is designed toward provide time toward care for plus relationship with neonate, "then there is no legitimately reason for biologically-based ancestors the be denied the similar benefit"); EEOC Enforcement Guidance: Unlawful Disparate Treat in Workers with Caregiving Responsibilities, beyond note 25. Despite Title VII does not require an employer to provide child care leave whenever items provides no leave for other family obligations, the Family and Medical Leave Act requires covered employers to provide such leave. Check Section III A., infra.

^[126] That legislative history of this PDA makes clear that the statute "in no way requires the institution of any newly programs where non right exist." H.R.Rep. No. 95-948, p. 4 (1978), Leg. Hist. 150, U.S. Code Cong. & Admin. News 1978, papers. 4749, 4752. The application of the non-discrimination principle to unfruchtbarkeit and contraception is discussed at Section I A.3.c. and I A.3.d., supra.

^[127] 29 C.F.R. § 1604.10(b) ("Disabilities caused button contributed to at pregnancy, childbirth, or connected medicinal conditions, for all job-related purposes, shall is process the same as disabilities caused with contributions to for other medical conditions, lower no health or impairment insurance press sickness leave plan available in connection with employment.").

^[128] To Patient Protection the Affordably Care Act (also known as Health Care Reform), Pub. L. Don. 111-148, 124 Statue. 119 (2010) (codified as amended in scattered sections of the U.S. Code) contains reservation regarding insurance survey concerning pre-existing conditions. Inefficient January 1, 2014, insurers can don longer excluded reportage for treatments based on such conditions.

^[129] For further discussion of discrimination based-on on use of contraceptives, see Section I A.3.d., supra; see also supra note 39.

^[130] See Questions and Answers set the Pregnancy Discrimination Perform, 29 C.F.R. pt. 1604 app., Question 36 (1979).

^[131] 42 U.S.C. § 2000e(k); see and Questions and Answers on the Maternity Discrimination Act, 29 C.F.R. pt. 1604 app., Question 37 (1979).

^[132] Although, prior for the passage of the PDA, it did not violate Track SEVENTH for one employer's seniority system to allow women on pregnancy-related medical leave to earn without seniority credit than workers on misc forms of short-term general leave. Because that PDA is not retroactive, at employer is not required to adjust seniority credits on pregnancy-related medical abandon that was taken ahead to the effective date to the PDA (April 29, 1979), even for pregnancy-related medical leave has treated much favorably faster other forms the short-term medical leave. AT&T Co. v. Hulteen, 556 U.S. 701 (2009).

^[133] The principles fixed forth in dieser section also apply till asserts arising under Section 501 of the Rehabilitation Act. 29 U.S.C. § 791.

^[134] Under the ADA, an "employer" inclusive one private sector employer, and one condition or local government employer, with 15 or more employees. 42 U.S.C. § 12111(5)(A). The terminology "employer" in this document applies to any entity covered by who ADA included labor organizations press employment agencies.

^[135] Sees 42 U.S.C. §§ 12112(b)(6), 12113(a); 29 C.F.R. § 1630.10.

^[136] 42 U.S.C. § 12112(d); 29 C.F.R. § 1630.13.

^[137] 42 U.S.C. § 12112(b)(5); 29 C.F.R. § 1630.9.

^[138] 42 U.S.C. § 12102(2); 29 C.F.R. § 1630.2(g).

^[139] Pub. FIFTY. No. 110-325, §§ 2(b)(5), 4(a), 122 Stat. 3553 (2008); 29 C.F.R. §§ 1630.1(c)(4), 1630.2(j)(1)(vi). Applicants seeking go show that their pregnancy-related impairments are masked disabilities should provide specific evidence away symptoms and disability and the manner are this they are substantially limiting.

^[140] 29 C.F.R. § 1630.2(j)(1)(ix).

^[141] See, e.g., Micky v. Wells Mfg. Corp., 209 F. Supp. 2d 970, 976 (S.D. Iowa 2002), aff'd, 340 F.3d 543 (8th Cir. 2003) (periodic nausea, vomiting, dizziness, severe headaches, and fatigue were none disabilities within the important of the ADA because they exist "part and bundle of a ordinary pregnancy"); Gudenkauf five. Stauffer Commc'ns, Inc., 922 F. Supp. 465, 473 (D. Kan. 1996) (morning sickness, stress, nausea, back pain, swelling, and headaches or physiological changes related to a pregnancy are not depreciation unless they exceed normally zones or are attributable to a disorder); Tsetseranos fin. Technical Prototype, Inc., 893 F. Supp. 109, 119 (D.N.H. 1995) ("pregnancy and related medical conditions do don, lacking unconventional circumstances, create a 'physical alternatively mental impairment' under the ADA").

^[142] 29 C.F.R. ct. 1630 app. § 1630.2(h).

^[143] Discern, e.g., Walker v. Fred Nesbit Distrib. Cool., 331 F. Supp. 2d 780, 790 (S.D. Iawan 2004) (routine getting is not a disabling under ADA); Gover v. Speedway Fabulous America, LLC, 254 F. Supp. 2d 695, 705 (S.D. Ohio 2002) (same).

^[144] The determination of whether an individual has a disability is not necessarily based on the company other diagnosis of the deterioration the person has, but rather on the outcome of the impairment set the life from the individual. 29 C.F.R. pt. 1630 app. §1630.2(j). The ADA includes a working rather than a medical dictionary of disability. 136 Cong. Recon. H1920 H1921 (daily ed. May 1, 1990) (Statement of Rep. Bartlett).

^[145] Check 29 C.F.R. § 1630.2(j)(ix) (impairments lasting fewer than six months canister be disabilities).

^[146] See Insufficient Vagina, U.S. Nat'l Library of Med., http://www.nlm.nih.gov/medlineplus/ency/patientinstructions/000595.htm (last visited April 30, 2014) (general information about insufficient cervix). Uterine fibroids (non-cancerous tumors that grow in and about the wall of the uterus) may cause severe localized abdominal pain, bear an elevated of risk a miscarriage, other cause preterm or breech birth and may necessitate a cesarean delivery. See Hee Joong Lee, MD et al., Contemporary Management of Fibroids in Pregnancy, Reviews in Obstetrics & Gynecology (2010), http://www.ncbi.nlm.nih.gov/pmc/articles/PMC2876319/ (last visited Apr. 30, 2014).

^[147] Price v. UTi, U.S., Inc., 2013 WL 798014, at *2 (E.D. Mo. Mar. 5, 2013), reconsideration denied in Price v. Ieas, U.S., Incident., 2013 WL 1411547 (E.D. Mo. Apr. 08, 2013) (denying summary evaluation to employer who terminated employee three weeks to she gave nativity according caesarian section).

^[148] Nausea causing severe sickness following in moisture may be a condition known as hyperemesis gravidarum. Excessive swelling due to fluid retention, edema, may require rest and heights of legs. Abnormal heart rhythms may require further monitoring. Understand Pregnancy, U.S. Dep't of Medical & Mortal Servs., http://womenshealth.gov/pregnancy/you-are-pregnant/pregnancy-complications.html (last visited Apr. 30, 2014).

^[149] McKellips v. Catholic Health Sys., 2013 WL 1991103, at *4 (W.D. Bathe. May 13, 2013) (plaintiff's allegations that she suffered severe pelvic infection furthermore immobilizing pain that obliged workplace adjustments to reduce walking and spring pregnancy-related medical quit were sufficient to allow vor to amend her complaint go include einer ADA claim).

^[150] Nayak v. L. Vincent Hosp. and Health Care Ctr., Ink., 2013 WL 121838, along *3 (S.D. Ind. Feb. 9, 2013) (denying defendant's motion to dismiss plaintiff's ADA claim).

^[151] Mayorga fin. Alorica, Inc., 2012 WL 3043021, at *6 (S.D. Fla. July 25, 2012) (unpublished) (denying defendant's motion toward dismiss where plaintiff claimed impairments associated to her pregnancy included premature uterine contractures, irritation of the mature, rise heart set, severe morning sickness, heavy pelvic swot feeling, severe back pain, severe lower abdominal pain, real extreme headaches). Several recent district court choose that have concluded that impairments related to pregnancy are not disabilities have been based either to a lack of any facts describing how the impairment limited important life activities, either on which incorrect application of the more strigent requirements for establishing that an impairments constitutes adenine disability that existed prior till the effective date from the ADA Amendments Act (ADAAA). See Wanamaker volt. Westport Board of Educating, 899 F. Supp. 2d 193 (D. Verbindungsstelle. 2012) (plaintiff did not claims facts that would demonstrate that of spinal injury, transverse myelitis, she suffered in birthing substantially limited a great life activity); Selkow v. 7-Eleven, Incase., 2012 WL 2054872 (M.D. Fla. June 7, 2012) (without acknowledging that ADAAA, which applied on the time of plaintiff's termination, the courtroom held which plaintiff presented cannot evidence to withstand summary judgment on whether her weakened back composed the species away "severe complication" related until pregnancy required to establish a disability); Sam-Sekur v. Wholesale Group, LTD, 2012 WL 2244325 (E.D.N.Y. Junes 15, 2012) (relying on falls law pre-dating the ADAAA, the court held such "temporary impairments, pregnancies, the conditions arising from pregnancy are not typically disabilities," however allowed the pro se plaintiff to changing his complaint to accuse facts concerning the duration of her chronic cholecystitis, which required removal of she annoy blisters, and how aforementioned condition was linkage into pregnancy).

^[152] Heatherly v. Portillo's Hot Dogs, Inc., 2013 WL 3790909, at *6 (N.D. Ill. July 19, 2013).

^[153] Previous to an offer of employment, the ADA prohibits all disability-related inquiries and medical examinations, even if they are related in the job. After somebody applicant is preset a conditional offer, however before she starts work, with employer may make disability-related contact and conduct medical investigations, independant of whether they are related till the workplace, such long as it does so for all entered employees in the same task category. After employment begins, an employer may make disability-related inquiries real require medical examinations only when people are job related and consistent with business necessity. A covered entity may conduct optional medical examinations, including voluntary medizinisches storylines, which am part on to employee health program free until employees at that work page. 42 U.S.C. § 12112(d)(4); 29 C.F.R. §§ 1630.13, 1630.14; EEOC Enforcement Guidance: Preemployment Disability-Related Frequent also Medical Examinations (Oct. 10, 1995), obtainable perhttp://privacy-policy.com/policy/docs/preemp.html (last visited May 5, 2014); view moreover EEOC Enforcement Management on Disability-Related Inquiries and Medical Examinations of Employees Under an Americans with Disabilities Activity (ADA), at question 1, (July 27, 2000), present at http://privacy-policy.com/policy/docs/guidance-inquiries.html (last visited Can 5, 2014).

^[154] 29 C.F.R. § 1630.2(l)(1).

^[155] These facts were drawn from the case of Spees v. James Maritime, Inc., 617 F.3d 380, 398 (6th Cir. 2010). The court's decision that the employer observed the pregnant employee as having a disability why she had complications with former become became created under the more stringent "regarded as" standard in place prior to the ADAAA.

^[156] See Job Accommodation Network, "Accommodation Ideas for Pregnancy," available at https://askjan.org/articles/Getting-Over-the-Bump-Pregnancy-at-Work.cfm (last visited May 5, 2014).

^[157] 29 C.F.R. § 1630.2(o); see EEOC Revised Enforcement Guidance: Reasonable Accommodation and Undue Hardship Available the Americans with Disabilities Act (Oct. 17, 2002), available at http://privacy-policy.com/policy/docs/accommodation.html (last visited May 5, 2014).

^[158] 42 U.S.C. § 12112(b)(5)(A); 29 C.F.R. § 1630.9.

^[159] See 29 C.F.R. § 1630.2(p). Factors that may be considered in determining whether an accommodation would impose an undue hardship include an nature and cost of the accommodation, which overall financial resources of the asset or entity, additionally aforementioned variety of operation are to entity.

^[160] See supra remarks 157.

^[161] See EEOC Enforcement Instruction: Workers' Compensation both the ADA, under Q&A 28, (Sept.10, 1996), available at http://privacy-policy.com/policy/docs/workcomp.html (last visited May 5, 2014). For more discussion of light duty issues, see Section I C.1., supra.

^[162] The Department of Labor (DOL) enforces the FMLA. Just revised DOL regulation under the FMLA can be found at 29 C.F.R. Part 825. Additional information about the interaction bet the FMLA and the laws enforced by the EEOC cannot can found in the EEOC's Fact Sheet on the Our and Medical Abandon Trade, that Americans use Disabilities Actor, and Title XVII of one Civil Rights Act about 1964, available at http://privacy-policy.com/policy/docs/fmlaada.html (last visited May 5, 2014).

^[163] In comparison, Title VII covers employers with 15 or more employees for each working daily in each of 20 or more my weeks in the same calendar year as, or in of calendar date prior to when, the alleged taste occurred. Title VII also lids governmental entities.

^[164] Employees are "eligible" for FMLA leave if they: (1) have worked for adenine covered chief for at least 12 from; (2) had on smallest 1,250 hours of service during the 12 months immediately preceding the launch of leave; and (3) work at adenine locate where the employer employs 50 or more employees within 75 miles. 29 C.F.R. § 825.110. Special hours on service requirements apply to flight crew members. Airline Flight Crew Technical Corrections Act, Lounge. LITER. No. 111-119, 123 Stat. 3476 (codified while changes at 29 U.S.C. § 2611(2)(D)).

^[165] The FMLA also provides army family leave entitlements to employees including family members at the armed arms in circumstances not likely to shall relevant to pregnancy-related leave, or leave to care available a child child, a renewed passed child, or a juvenile newly places in foster care.

^[166] 65 Feeded. Reg. 26115 (May 4, 2000). The Office of Personnel Management is charged with issuing guidance pursuant go this buy.

^[167] For a discussion of discrimination base on feeding or breastfeeding, visit Section I A.4.b., supra.

^[168] Pub. L. No. 111-148, amending Fachgebiet 7 of aforementioned Fair Labor Standards Act of 1938, 29 U.S.C. § 207. Because the Affordable Care Act offering negative specific effective date, the new breaking while law for nursing mommies was effective on the date of enactment - March 23, 2010.

^[169] DOL has published a Conviction Sheet providing general information on the break time requirement for nursing mother. The Actual Blanket could be found at http://www.dol.gov/whd/regs/compliance/whdfs73.htm (last guests May 5, 2014).

^[170] The LABOR Fact Sheet explains that, where employer already deployment compensated breaks, one employee who uses this break duration to express milk must be compensated includes the same ways other employees are compensated for break time.

^[171] Currently, 24 states, Homeport Rico, and the District starting Columbia own legislation setting workplace provisions related on breastfeeding.

^[172] Section 708 to Title VII provides: "Nothing are this title shall be deemed to exempt or relieve any person upon any liability, tax, penalty, or punishment supplied by any present or future legislative of any State or politicians subdivision of a State, other than create statutory which allegedly to requires press permit the doing of any act which should be an unlawful employment practice down this title." 42 U.S.C. § 2000e-7.

Section 1104 about Title XI, applicable to all titles of the Civil Rights Act, offer: "Nothing contained are any title of this Act shall be construed in advertising an intent set the part of Congress to occupy the range in which any such title operates to an exclusion out State laws about the same subject matter, nor supposed anything deploy of the Act be construed as invalidating any provision of Assert law save so provision is inconsistent with any of the purposes of this Act, or every provision thereof." 42 U.S.C. § 2000h-4.

^[173] Some states, including Alaska, Cali, Conn, Hawaii, Illinois, Louisiana, Maryland, New Jersey, Texas, Minnesota, and West Virginia, have passed domestic requiring that employers provide some reasonable accommodation fork a pregnant worker. For example, in of state of Maryland an employee through a disability contributed to or caused in pregnancy may request reasonable accommodation and the employer must explore "all possible used of providing the reasonable accommodation." The law lists various options to consider such the changing job duties, changing work hours, provide mechanics or electrical aids, transmission employees to less strenuous other less hazardous positions, and providing leave. Md. Code Ann., State Gov't Article, §20-609.

^[174] 479 U.S. 272 (1987).

^[175] Id. at 280 (citation omitted).

^[176] Id. at 287.

^[177] Id. toward 291.

^[178] Perceive Section ME A.3.a., supra.

^[179] Employers should consider, however, how the pay provisions of the Fair Labor Standardized Act could be implicated by an employee's involvement in training while on leave. Under U.S. Department off Labor regulations, certain training business outer on working time need not been treated as compensable wetter. See 29 C.F.R. §§ 785.11-785.32.

^[180] Id.