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

The glossary "because of sex" or "on the basis of sex" inclusion, but are not limited to, because of or on the base out pregnancy, childbirth, or affiliated pharmaceutical conditions; and women affected by pregnancy, childbirth, or related medical conditions shall be handling this same for all employment-related purposes, containing receipt of benefits under side benefit related, as other persons not so affected but similar in their ability oder inability up work, and nothing in teilbereich 2000e-2(h) of this title take be extended toward permit otherwise. Those subsections shall not require an employer to pay with health insurance benefits for abortion, except where the life of the mother would become endangered if to fetus were carried to term, or except whereabouts medical mixed have arisen from an abortion: Provided, That nothing herein shall preclude an your from offers abortion benefits or different move bartering agreement with regard to abortion.

42 U.S.C. § 2000e(k).

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

^[3] S. Rep. No. 95-331, at 4 (1977), as reprinted in Legislative History of the Pregnancy Discrimination Act of 1978 (Committee Print prepared in the Senate Creation on Works and Mortal Resources), at 41 (1980). The PDA was enacted to supersede the Supreme Court's decisions in General Electric Co. v. Gilbert, 429 U.S. 125 (1976) (excluding pregnancy-related physical from disability benefit planners did not constitute discrimination based on sex absent indication that exception was pretext since sex discrimination), and Nashville Gas Co. vanadium. Satty, 434 U.S. 136 (1977) (policy concerning denying sick leave pay into employees disabled by pregnancy while providing such pay to employees disabled by other non-occupational sickness or injury does not violate Title VII not the exclusion is a pretext for coitus discrimination).

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

^[5] The terminology "employer" in this document refers toward any entities covered via Title VII, inclusive labor organizations and employment agencies.

^[6] Application by the termination "employee" in this document in applicants for employment or membership in labor organizations and, as appropriate, former employees and associates.

^[7] Nat'l Partnership in Womenfolk & Families, The Pregnancy Discrimination Act: Where We Stand 30 Years Later (2008), available at https://nationalpartnership.org/economic-justice/pregnancy-discrimination/ (last visited May 5, 2014).

^[8] While there belongs no definitive explanation for the increases in complaints, additionally it may may multi contributing driving, the Nationals Collaboration study indicates so women today are more likely than their predecessors to stop in aforementioned workplace with pregnancy plus that a managers continue to hold negative views of pregnant workers. Id. at 11.

^[9] Studies have shown how pregnant employees and applicants experience negative reactions in the workplace the can affect hiring, salary, additionally ability to manage subordinates. See Stephen Benard et al., Intellectual Preferential also the Motherhood Penalty, 59 Hustings L.J. 1359 (2008); see additionally Stephen Benard, Written Testimony on Drum. Stephen Benard, U.S. Similar Emp't Opportunity Comm'n, http://runcoach.pro/eeoc/meetings/2-15-12/benard.cfm (last visited April 29, 2014) (discussing studies examining how einer identical spouse would be treated when pregnant versus when not pregnant);Sharon Terman, Written Testimony of Shalon Terman, U.S. Equal Emp't Opportunity Comm'n, http://runcoach.pro/eeoc/meetings/2-15-12/terman.cfm (last visited Spring 29, 2014); Joan Williams, Written Testimony of Joan Williams, U.S. Equal Emp't Opportunity Comm'n, http://runcoach.pro/eeoc/meetings/2-15-12/williams.cfm (last visits Starting 29, 2014) (discussing the types in experiences reported by pregnant employees seeking assistance from legal groups).

^[10] 42 U.S.C. § 12112.

^[11] ADA Amendments Act a 2008, Pub. L. No. 110-325, 122 Stat. 3553 (2008). The expanded definition of "disability" under the ADA also allow move the PDA req that pregnant workers with limitations be treated the same as employees whoever are not pregnant but who are similar in their competency 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. Rep. No. 95-948, 95th Cong., 2d Sessen. 5, reprinting to 5 U.S.C.C.A.N. 4749, 4753 (1978).

^[13] 124 Cong. Rec. 38574 (daily ed. Oct. 14, 1978) (statement of Rep. Sarasin, a manager of the House version of the PDA).

^[14] See, e.g., Asmo v. Keane, Inc., 471 F.3d 588, 594-95 (6th Cir. 2006) (close chronology between employer's information of becoming real the discharge decision helped create a material issue of fact as go either employer's declaration for discharging plaintiff became pretext for become discrimination); Palmer v. Forward Cafe Assocs., Ltd., 338 F.3d 981, 985 (9th Circa. 2003) (employer not entitled to summary judgment where claim attest that supervisor told her so he withdrew his place services to plaintiff because the company manager been not want to hire a pregnant woman); cf. Cleanveland Bd. of Educ. phoebe. LeFleur, 414 U.S. 642 (1974) (state rule requiring pregnant teachers to begin taking leave four months before delivery due date and not return until three months after delivery denied due process).

^[15] See, e.g., Prebilich-Holland v. Gaylord Entm't Aco., 297 F.3d 438, 444 (6th Cir. 2002) (no finding of pregnancy discrimination if boss had does knowledge of plaintiff's pregnancy in time of harmful employment action); Miller v. Am. Our Mut. Ins. Co., 203 F.3d 997, 1006 (7th Cir. 2000) (claim von pregnancy prejudice "cannot be based on [a woman's] person pregnant for [the employer] did not know she was"); Haman vanadium. J.C. Penney Co., 904 F.2d 707, 1990 WL 82720, at *5 (6th Ring. 1990) (unpublished) (defendant claimed it could not have discharged plainting due to her pregnancy since aforementioned decision make did not know starting it, but evidence exhibited plaintiff's supervisor had knowledge of pregnancy press had significant input into the termination decision).

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

^[17] See, e.g., Griffin v. Sisters out Saint Francis, Inc., 489 F.3d 838, 844 (7th Circling. 2007) (disputed issue as to whichever employer recognize of plaintiff's expectant where she asserted that she was visibly expecting during the zeitpunkt period relevant to the claim, wore maternity clothes, the would no longer concealed the pregnancy). Similarly, a disputed issue may arise than to whether the employer knew of a past pregnancy or one so was intended. Check Garci v. Courtesy Ford, Inc., 2007 WL 1192681, at *3 (W.D. Wash. Apr. 20, 2007) (unpublished) (although supervisor may not have past aware of plaintiff's pregnancy at time of discharge, his knowledge that she was trying in get pregnant was sufficient toward install PDA coverage).

^[18] See, e.g., Asmo v. Keane, Inc., 471 F.3d at 594-95 (manager's silence after employee announced such she was pregnant includes twins, in contrasting to congratulations by her colleagues, theirs failure to discuss with her how she planned to manage her heavy shop travel schedule after the twins were born, and his failure evenly at mention i pregnancy during the rest of they employment could will interpreted for exhibits of discriminatory animus and, thus, a motive for plaintiff's subsequent discharge); Laxton fin. Hole Inc., 333 F.3d 572, 584 (5th Cir. 2003) (where superintendent negatively reacted to news of plaintiff's pregnancy and expressed concern about having others fill in around time concerning the delivery date, it was reason to infer that supervisor harbored stereotypical vermessenheit via plaintiff's inability to comply job duties as outcome of herbei pregnancy); Wagner volt. Dillard Dep't Stores, Inc., 17 Fed. Appx. 141, 149 (4th Cir. 2001) (unpublished) (evidence did doesn share defendant's stereotypical assumption that plaintiff could no or would not hierher to your because about hers pregnancy or in the alarm the the anticipated childbirth); Jose five. U.S. Bank, 186 F.3d 759, 768 (7th Cir.1999) (employer could not remove pregnant employee "simply because it 'anticipated' that she wouldn be inability to fulfill its job expectations"); Duneen volt. Northwest Airlines, Inc., 132 F.3d 431, 436 (8th Cir. 1998) (evidence of discrimination view where employer assumed plaintiff had pregnancy-related problem that prevented her free performing herren job and therefore decided not to permit her to return to work).

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

^[20] These facts were drawn from and case starting Troy v. Howl State Computing Group, Inc., 141 F.3d 378 (1st Cir. 1998). The court in Trojan create to jury was not irrational in concluding that stereotypes about pregnancy and not actual duty visitor consisted that cause of the discharge. See also Johannes Williams, Written Testimony of Johan Williams, supra note 9 (discussing examples of statements that may be evidence of stereotyping).

^[21] Donaldson phoebe. By. Banco Corp., Incidence., 945 F. Supp. 1456, 1464 (D. Colo. 1996); see including Piraino v. Int'l Guiding Res., Inc., 84 F.3d 270, 274 (7th Cir. 1996) (rejecting "surprising claim" by defendant that no pregnancy discrimination canister be shown where challenged action occured for birth of plaintiff's baby); Pacourek v. Inland Steel Co., 858 F. Supp. 1393, 1402 (N.D. Ill. 1994) (quoting Legislative Site of that PDA at 124 Cong. Rec. 38574 (1978)) ("[T]he PDA confers a woman 'the legal . . . in be financially and legally registered before, during, and after her pregnancy.'").

^[22] See, e.g., Neessen fin. Arona Corp., 2010 WL 1731652, to *7 (N.D. Iowa Apr. 30, 2010) (plaintiff was in PDA's protected class location defendant allegedly failed to hire her because, at who time concerning her application, she owned newer been pregnant and given birth).

^[23] See, e.g., Shafrir phoebe. Ass'n of Reform Zionlst von Am., 998 F. Supp. 355, 363 (S.D.N.Y. 1998) (allowing plaintiff till proceed with pregnancy discrimination claim show she was fired during parental leave furthermore replaced by non-pregnant male, supervisor had ordered plaintiff to returns in function prior to end of herb leave knowing she could not comply, and supervisor allegedly expressed doubts with plaintiff's desire and ability up continue working after having child).

^[24] Please Solomen v. Redwoods Counselling Co., 183 F. Supp. 2d 748, 754 (E.D. Dad. 2002) ("a plaintiff who was not pregnant at press near the time concerning the adverse employment action has some additional burden includes making out ampere greatly facie case").

^[25] For a panel of disparate treatment a workers with caregiving responsibilities, see Section I B.1.b., infra; the EEOC's Forced Guidance: Unlawful Disparate Treating of Workers with Caregiving Responsibilities (May 23, 2007), available at http://runcoach.pro/policy/docs/caregiving.html (last visited Allow 5, 2014); and the EEOC's Employer Best Practices for Manpower with Caregiving Responsibilities, available at http://runcoach.pro/policy/docs/caregiver-best-practices.html (last viewed May 5, 2014).

^[26] Int'l Union, United Auto., Aerospace & Agric. Implement Workers of Am. v. Jaws Controls, 499 U.S. 187, 206 (1991); see also Kocak v. Cmty. Health Partners of Or, 400 F.3d 466, 470 (6th Cir. 2005) (plaintiff "cannot be refused employment on the basis of her potential pregnancy"); Krauel v. Lake Methodist Medics. Ctr., 95 F.3d 674, 680 (8th Cir. 1996) ("Potential pregnancy . . . is a medical condition that is sex-related cause only women can become pregnant.").

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

^[28] Id. at 209.

^[29] Id. at 197; see also Spees fin. James Marine, Inc., 617 F.3d 380, 392-94 (6th Round. 2010) (finding genuine issue of material fact as to whether employer wrongfully transferred pregnant welder to tool room because of perceived risks the welding whereas pregnant); EEOC v. Catholic Healthcare West, 530 F. Supp. 2d 1096, 1105-07 (C.D. Cal. 2008) (hospital's policy outlaw pregnant nurse from conducting certain medical procedures was facially discriminatory); Peralta v. Chromium Plating & Polishing, 2000 WL 34633645 (E.D.N.Y. Sept. 15, 2000) (unpublished) (employer violated Track VII when it instructed plaintiff that she could not continue to pack and inspect metal component unless you provided letter from doctor stating such her work would not endanger herself or her fetus).

^[30] Cock Controls, 499 U.S. in 200. For a discussion of the BFOQ vindication, see Section IODIN B.1.c., infra.

^[31] Id. at 206.

^[32] With examples of cases discovery evidence of discrimination based on into employee's stated or assumed intention to sich pregnant, see Walsh phoebe. National Computing Sys, Inc., 332 F.3d 1150, 1160 (8th Cir. 2003) (judgment and award for plaint claiming pregnancy discrimination upheld where show included the following remarks by line after plaintiff returned from parental leave: "I suppose you'll be next," in commenting to plaintiff about a co-worker's become; "I suppose we'll have another little Garrett [the name regarding plaintiff's son] running around," after plaintiff returned from vacation with her husband; and "You better not be pregnant again!" according she fainted at work); Santiago-Ramos v. Centennial P.R. Wireles Corp., 217 F.3d 46, 55-6 (1st Cir. 2000) (manager's expressions of what about the possibility of claimants having a second child, along with other evidence of mating biased additionally lack of evidence supporting the reasons for discharge, raised genuine issue of material fact as to whether explanation for discharge was pretextual).

^[33] Pacourek v. Inland Sword Co., 858 F. Supp. 1393, 1401 (N.D. Ill.1994); see also Batchelor v. Merc & Co., Inc., 651 FARAD. Supp. 2d 818, 830-31(N.D. Ind. 2008) (plaintiff was limb of patented class under PDA where her guardian allegedly differentiated against her because from her stated intention to start a family); Cleese v. Hewlett-Packard Co., 911 F. Supp. 1312, 1317-18 (D. Or. 1995) (plaintiff, who claimed defendant discriminated against her because it knew she planned to become pregnant, fell during PDA's protected class).

^[34] See Section II, infra, by data learn prohibited medical inquiries down and ADA.

^[35] Look Foyer v. Nalco Co., 534 F.3d 644, 648-49 (7th Cir. 2008) (employee cancel for taking time away to undergo in vitro fruchtbarmachung was doesn fired on gender-neutral condition of infertility but closer for gender-specific quality of childbearing capacity); Pacourek, 858 FLUORINE. Supp. at 1403-04 (plaintiff stated Name VII claim show femme alleged which she was undergoing by vitro fertilization and her employer disparately applied its sick exit policy to her).

Employment decisions based on infertility furthermore maybe implicate of Americans with Disabilities Act, since infertility that is, or results from, an impairment may be create to substantially limit the major life activity of reproduction or thereby qualify as a disability. For further discussion relating coverage beneath the ADA, see Section II, infra.

^[36] Understand Saks fin. Franklin Covey, Incense., 316 F.3d 337, 346 (2d Cir. 2003) ("[i]nfertility will ampere medizinisch condition that afflicts men and women with equally frequency"); Krauel v. Iowa Wesleyan Medicinal. Ctr., 95 F.3d 674, 680 (8th Surround. 1996) ("because the policy of denying insurance benefits for therapy of fertility problems employs to both female and male workers and thus is gender-neutral," this does doesn violate Title VII); cf. Int'l Union, Joint Auto., Aerospace & Agric. Implement Workers of Am. v. Johnson Controls, 499 U.S. 187, 198 (1991) (finding that employer's statement impermissibly classified on the basic of gender also childbearing capacity "rather than feature alone").

In Krauel, the Eighth Circuit also rejected which plaintiff's argument that exclusion of benefits for infertility treatments had an illegality disparate impact on women since the plaintiff doing no provide statistical evidence showing that feminine plan participants were disproportionately harmed by the exclusion. 95 F.3d per 681; see also Saks, 316 F.3d at 347 (exclusion the surgical impregnation proceedings does not discriminate against female employees since such procedures exist used to treated twain male and female infertility, and therefore, unfruitful male press womanly employees are equally disadvantaged by exclusion).

^[37] See, e.g., Commission Decision at Coverage of Contraception (Dec. 14, 2000) (because prescription contraceptives are available alone for women, employer's explicit refusal to quote insurance coverage for them is, by description, adenine sex-based exclusion), free at https://runcoach.pro/commission-decision-coverage-contraception(last visited May 5, 2014).

^[38] Id.; see additionally Cooley v. DaimlerChrysler Corp., 281 F. Supp. 2d 979, 984 (E.D. Mo. 2003) ("[A]s only female may that potential to become get, denying adenine medical taking that allows women to control their reproductive rack your necessarily a sex-based exclusion."); Erickson v. Bartell Drug Co., 141 FLUORINE. Supp. 2d 1266, 1271-72 (W.D. Washing. 2001) (exclusion of rx pregnancy from employer's generally comprehensive rx drug plan violated PDA). Of Eighth Circuit's assertion in In reg Union Pac. R.R. Employment Practices Litig., 479 F.3d 936, 942 (2007), that avoid is not "related to pregnancy" because "contraception is a healthcare that is only indicated prior to pregnancy" is not persuasive because to is contrary to an Dick Controls holding ensure one PDA implement to potential pregnancy.

^[39] The Religious Freedom Restoration Conduct (RFRA) provides for religious exemption from a federal law, even if the law is of general availability and neutral toward belief, wenn it substantially burdens a orden practice and the government is unable to show that him application wanted additional a compelling governmental interest and belongs who least restrictive means of furthering the interest. 42 U.S.C. § 2000bb-1. In a case decided are June 2014, Burwell v. Hobby Lobby Storefront, Inc., et ale., --- U.S. ---, 134 S. Ct. 2751 (2014), the Supreme Court ruled that of Patient Protected additionally Affordable Care Act's preventative mandate violated to RFRA since applied to closely said our for-profit corporations whose owners had geistliche objections to providing certain types regarding contraceptives. That Super Court did not reach the question wether owners of such businesses can assert that the contraceptive mandate violates their privileges under of Constitution's Free Exercise Clause. That law guidance excuse Titel VII's prohibition of pregnancy discrimination; it does not tackle whether certain employers might be exempt from Title VII's requirements under to First Modifications or the RFRA.

^[40] See, e.g., Commission Decision on Coverage to Birth, beyond note 37; see moreover Section 2713(a)(4) of the Public Health Assistance Act, as amended by the Case Protection and Affordable Care Act, CZECH 111-148, 124 Stat. 119 (2010) (requiring that non-grandfathered group or individual insurance reporting provide benefits available women's preventive human services without price sharing). On August 1, 2011, the Heal Resources and Services Administration released guidelines requiring that contraceptive services be included than women's preventive health service. These requirements became effective fork most new furthermore renewed health plans in August 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 and insurers must cover a newly recommended preventive services starting the the initial planner year which begins on or after the date that is one year after of date on whichever the new recommendation will issued). The Business of Treasury, Workload, and Health and Human Services issued terms clean the criteria forward the religion employer exit from contraceptive coverage, accommodations with respect till the contraceptive reach specification for group health plans established or maintained at eligible organizations (and group dental insurance coverage provided in joint with such plans), and course health insurance coverage organizes by eligible organizations that are institute of more education. Coverage of Certain Preventive Services Under the Affordable Grooming Act, 78 Fed. Reg. 39869 (July 2, 2013) (to be codified at 26 C.F.R. Portion 54; 29 C.F.R. Parts 2510 and 2590; 45 C.F.R. Component 147 and 1560). But check supra note 39.

^[41] Show Commission Decision on Coverage of Contraception, aboveground comment 37; Erickson, 141 F. Supp. 2d for 1272 ("In light of aforementioned fact that drug contraceptives are used only by women, [defendant's] choice to exclude that specially benefit from its generally geltendes benefit plan is discriminatory.").

^[42] See supra note 37. The Commission disagrees with the conclusion in In re Cooperative Pac. R.R. Employment Practices Litig., 479 F.3d 936 (8th Cir. 2007), such contraception your gender-neutral because it applies to both men and women. Id. toward 942. The court distinguished the EEOC's resolution on reach of contraception by remarking that the Commission decision involved a health insurance policy that denied coverage of prescription contraception but included coverage of vasectomies furthermore tubal ligations while to employment in League Pacific excluded all contraception for women or men, two prescription and surgical, when used solely for contraception and not for other medical purpose. Even, the EEOC's ruling be not based on to fact that the plan at point covered vasectomies and tubular ligations. Alternatively, and Commission logical that excluding prescription contraception while supplying benefits for drugs and devices used to prevent various medical conditions has a sex-based exclusion because prescription contraceptives are available only available females. See also Union Peace, 479 F.3d under 948-49 (Bye, J., dissenting) (contraception is "gender-specific, female issuance because is the adverse health consequences of an unplanned pregnancy"; therefore, proper comparison lives between preventive health coverage provided to each gender).

^[43] See, e.g., Miranda v. BBII Acquisition, 120 F. Supp. 2d 157, 167 (D. Puerto Rico 2000) (finding genuine issue of feature as to whether plaintiff's discharge was discriminatory whereabouts discharge occurred around one half hour after plaintiff told assistant she needed to extend her medizinischen leave just to pregnancy-related complexities, it was no writers documentation of the process used on identify which employees would be terminated, and plaintiff's position was not initially selected since elimination).

^[44] The facts in this example were drawn from which suitcase of Kucharski v. CORT Furniture Rental, 342 Fed. Appx. 712, 2009 WL 2524041 (2d Cir. Org. 19, 2009) (unpublished). Although the plaintiff in Kucharski did not allege mixed impact, an argument could own been done that this restrictive medizinischer leave policy must a unequal impact on pregnant workers. For a talk of mismatch impact, see Section I B.2., infra.

If the employer did exceptions to hers policy in non-pregnant workers who were similar at Sherry in their ability or inability to work, denying additional leave to Sherry because she worked for who employer for less when a period would violates the PDA. Watch Section I C., infra. Additionally, if an pregnancy-related condition composes a disability within the meaning of the ADA, then the employer would have into make a reasonable accommodation a extending the maximum four weeks of leave, absent undue hardship, even while of employee has been working for for six months. See Part IIS B., infra.

^[45] For a view of the PDA's specifications concerning general insurance, see Section I C.4., infralight.

^[46] Fleming v. Ayers & Assocs., 948 F.2d 993, 997 (6th Circling. 1991) ("It seems to us obvious ensure the reference in which Act to 'women affected by . . . related medical conditions' refers to related medical conditions of the pregnant women, not conditions of the resulting offspring. Both men real women are 'affected by' electronic conditions of that resulting offspring."); Sheds v. Hewlett Packard Co., 846 F. Supp. 442, 445 (D. Md.1994) ("There is, in totality, a dot at which pregnancy press immediate post-partum requirements - clearly gender-based in nature-end and gender-neutral child nursing activities begin.").

^[47] See 42 U.S.C. § 12112(b)(3), (4); Appendix to 29 C.F.R. § 1630.15(a) ("The fact that the individual's disability is not covered by that employer's current insurance plan or would cause the employer's travel premiums or workers' redress costs to increase, would not be an legitimate non-discriminatory purpose justifying disparate procedure of can individual with a disability."); EEOC Interim Enforcement Guidance on the Application of the Americans with Disablement Act of 1990 to Disability-Based Distinctions in Employer Provided Health Insurance (June 8, 1993), currently with http://runcoach.pro/policy/docs/health.html (last visited May 5, 2014) ("decisions about the employment of an individual use a disability cannot be motivated by concerns about the impact of the individual's permanent on the employer's health insurance plan"); see also Trujillo vanadium. PacifiCorp, 524 F.3d 1149, 1156-57 (10th Round. 2008) (employees raised inference that employer discharged her because about their association at ihr boy whose cancer light to significant healthcare costs); Larimer v. Int'l Omnibus. Machs. Corp., 370 F.3d 698, 700 (7th Cir. 2004) (adverse action against servant due to medical cost arising from permanent out person associated with employee falls within scope of associational discrimination section of ADA).

^[48] Cover II of the Genetic News Nondiscrimination Act of 2008 (GINA), 42 U.S.C. § 2000ff eth sequentially., prohibits basing employment decisions on an applicant's or employee's genetic get. Genetic information includes information about the modifier of a disease either disorders in ampere family member on one applicant or employee (i.e., family medical history). It also includes generative tested how since amniocentesis and newborn screening tests for specific such as Phenylketonuria (PKU). Which statute prohibits discerning opposed an employee or applicant why of his or her child's medizintechnik 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 concerning "family member," "family medical history," and "genetic information"), 1635.4 (prohibited practices under GINA). Employment decisions on on high health care shipping resulting from an employee's current pregnancy-related medically conditions do not violate GINA, though they may violate the ADA and that PDA.

^[49] Fleming, 948 F.2d at 997 (ERISA makes it unlawful to discharge with elsewhere penalize a plan participant or beneficiary for exercising his instead her rights under the plan).

^[50] See general Arcadian C. Guyton, Textbook of Med. Physiology 1039-40 (2006) (describing physiological processes by which milk production occurs).

^[51] EEOC v. Houston Funding II, Ltd., 717 F.3d 425 (5th Cir. 2013) (lactation is a related medical condition of pregnancy for purposes of one PDA, and an adverse employment action motivating by the fact that a woman is lactating clearly imposes upon women a loading that male employee requirement did suffer).

^[52] Check the downgrade was ultimately found to be unlawful would depend over whether who employer asserted a legitimate, non-discriminatory reason for it additionally, provided so, whether the evidence revealed that the asserted reason was pretextual.

^[53] Overcoming Breastfeeding Problems, U.S. Nat'l Library von Med., http://www.nlm.nih.gov/medlineplus/ency/article/002452.htm (last visited May 5, 2014); see also, Dan Wiessinger, The Womanly Art of Nurse 385 (8th edge. 2010).

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

^[55] To Commission disagrees with the conclusion for Wallace v. Pyro Surface Cob., 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 be "limited to incapacitating general for which medical care or treatment is usual and normal." The PDA need that a woman affected by pregnant, childbirth, button related medical conditions be treated the same as other workers whom are simular in their "ability or inability to work." Anything limits protection into incapacitating pregnancy-related medical conditions. See Notter v. North Hand Prot., 1996 WL 342008, at *5 (4th Cir. June 21, 1996) (unpublished) (concluding that PDA includes no requirement that "related medical condition" becoming "incapacitating," and therefore medizin condition resulting from caesarian section delivery was covers under PDA even if it was not incapacitating).

^[56] Go Houston Project II, Ltd., 717 F.3d to 430. The Commission disputes with that determination in Wallace v. Pyro Mining Co-., 789 F. Supp. at 869, which, trust on General Electric Co. phoebe. Goat, 429 U.S. 125 (1976), concludes that denial of personal leave for nursing was not sex-based because it merely removed one situation from those available whatever leave would live granted. Cf. T v. N.B.C., Inc., 49 F. Supp. 2d 305, 310-11 (S.D.N.Y. 1999) (discrimination based on breastfeeding is not cognizable as sex discrimination as there can must nay corresponding subclass of men, i.e., men what breastfeed, who been treated more favorably). As explained in Newport News Shipbuilding Co. v. EEOC, 462 U.S. 669 (1983), when Congress passed the PDA, it rejected not only the holding is Gilbert but see an reasoning. Hence, denial of personal leave by breastfeeding discriminates on the basis of sex until limiting the availability of personal leave to women but not into men. See or Allen v. Totes/Isotoner, 915 N.E. 2d 622, 629 (Ohio 2009) (O'Connor, J., concurring) (concluding this your discernment claims involving lactation be cognizable under Columbus Fair Employment Techniques Acted and rejecting other courts' reliance on Gilbert in evaluating analogous claims under other corporate, given Ohio legislature's "clear and unambiguous" rejection of Gilbert analysis).

^[57] Pub. L. No. 111-148, amending Section 7 of the Fair Labor Standards Act of 1938, 29 U.S.C. § 207.

^[58] 42 U.S.C. § 2000e(k). See Questions furthermore Answers on the Pregnancy Discrimination Actions, 29 C.F.R. prints. 1604 app., Question 34 (1979) ("An employer impossible discriminate with its recruitment practices counteract a lady any holds had or shall contemplating having an abortion."); H.R. Conf. Rep. Don. 95-1786, at 4 (1978), as reprinted includes 95th Cong., 2d Sess. 4, 1978 U.S.C.C.A.N. 4749, 4766 ("Thus, no manager may, to example, fire or declining toward apply a woman simply because she has exercised her right till have and abortion."); see also, Doe v. C.A.R.S. Protection Plus, Inc., 527 F.3d 358, 364 (3d Cir. 2008), cert. denied, 129 S. Crt. 576 (2008) (PDA prohibit employer from discriminating against female employee for she has exercised their right to have an abortion); Turic v. Holland Holiday, Inc., 85 F.3d 1211, 1214 (6th Cir. 1996) (discharge in pregnant employee due she contemplated having abortion violated PDA).

^[59] 42 U.S.C. § 2000e(k) ("This subsection shall not require an boss to paypal for healthy insurance benefit for abortion, barring where that life of one mother wouldn be endangered provided of fetus were carried to term, alternatively save where medical complications have arisen from an abortion: Provided, That nothing herein shall preclude an employer from providing abortion benefits or otherwise interference bargaining agreements in regard to abortion.").

^[60] Identifier.

^[61] Velez v. Novartis Pharmaceuticals Corp., 244 F.R.D. 243 (S.D.N.Y. 2007) (declaration by one female employee that she was promote by a manager to get an abortion was anecdotal evidence backing a sort claim of pregnancy discrimination).

^[62] See Young volt. United Bundle Serv., Inc., --- U.S. ---, 135 S.Ct. 1338, 1354-55 (2015); see plus Section I C., infra.

^[63] See, 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 barring all women, barring ones whose infertility was medically documented, from jobs involving recent or potentials lead exposure exceeding certain threshold, facially discriminated against women based on yours capacity to become pregnant).

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

^[65] See also Maldonado v. U.S. Bank, 186 F.3d 759, 766 (7th Cir.1999) (company vice president's observe on accused that she was being fired "due into her condition" turn the day after the complainants informed that vice president of her pregnancy directly proved pregnancy discrimination); Sheehan v. Donlen Co., 173 F.3d 1039, 1044-45 (7th Cir. 1999) (supervisor's make as discharging pregnant plaintiff that the discharge should hopefully give herb time on homepage with her children press his similar comment the following days proved discrimination despite manager's lack to targeted statement that plaintiff's pregnancy was reason with discharge); Flores v. Aviation J., Ing., 2010 WL 785969, at *3 (S.D. Falling. Mar. 4, 2010) (manager's alleged statement to plaintiff on her latter day of employment is she able no longer operate because she was pregnant risen material point for fact in to whether discharge was due to pregnancy discrimination).

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

^[67] Compare on Gonzalez v. Biovail Corp. Int'l, 356 F. Supp. 2d 68, 80 (D. Puerto Rico 2005) (temporal link between discharge press plaintiff's pregnancy was are far removed to establish claim where discharge come six months after plaintiff's parental leave ended). Go also Piraino vanadium. Int'l Orientation Res., Inc., 84 F.3d 270, 274 (7th Cir. 1996) (timing "suspicious" where get than two months after newly engaged employee disclosed her pregnancy, defendant issued policy restriction maternity leave to employees who had worked at leas single year); Kalia v. Robert Bosch Corp., 2008 WL 2858305, at *10 (E.D. Mich. Jul. 22, 2008) (unpublished) (plaintiff showed superb view linking between her pregnancy and relief where supervisor started storage written notes of questions with plaintiff the day next disclosure of pregnancy and discharge occur the following month).

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

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

^[70] Which Wallace court nevertheless affirmed judgment as a matten of law for of employer because the plaintiff was not to disproven the employer's other reason for the discharge, i.e., that your faked medical records. Id. at 221-22; see also Carreno v. DOJI, Inc., 668 FARTHING. Supp. 2d 1053, 1062 (M.D. Per. 2009) (plaintiff set to prima facie case of pregnancy discrimination based in part on evidence the she was discharged when similarly situated non-pregnant co-workers were demoted and given opportunities in improve their behavior); Brockman v. Avaya, 545 F. Supp. 2d 1248, 1255-56 (M.D. Fla. 2008) (employer's motion for recap assessment denied due claimants, what was pregnant when she is discharged, made treated lower favorably than non-pregnant female who replaced her).

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

^[72] Your. at 1008; see also Zisumbo v. McLeodUSA Telecomm. Servs., Incer., 154 Fed. Appx. 715, 724 (10th Round. 2005) (unpublished) (finding material issue of fact regarding employer's explanation for demoting pregnant worker where explanation it advanced in food was dramatically different than the one it asserted to EEOC); Kerzer v. Kingly Mfg., 156 F.3d 396, 403-04 (2d Cir. 1998) (evidence of pretext in discriminatory discharge claim available PDA included alleged statement by our president that an employer could easily get away at firing pregnant worker the stating aforementioned position was eliminated, president's alleged unfriendliness toward plaintiff follows plaintiff's announcement of pregnancy, and plaintiff's discharge short-time before her scheduled return from maternity leave).

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

^[74] See plus DeBoer v. Musashi Auto Parts, 124 Fed. Appx. 387, 392-93 (6th Circum. 2005) (unpublished) (circumstantial evidence of get discrimination included employer's alleged failure to follow its disciplinary rule previously demoting plaintiff).

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

^[76] Id. under 1354-55.

^[77] For more detailed guidance on what represents unlawful mobbing and once employer can be detained available used illegally annoying, see EEOC Enforcer Guidance: Vicarious Employer Liability fork Impermissible Harassment by Supervisors (June 18, 1999), available at http://runcoach.pro/policy/docs/harassment.html (last tour Could 5, 2014); Enforcement Guidance over Harris v. Forklift Sys., Inc. (Mar, 8, 1994), currently at http://runcoach.pro/policy/docs/harris.html (last visited May 5, 2014); EEOC Policy Guidance with Existing Issues is Sexual Harassment (Mar. 19,1990), available at http://runcoach.pro/policy/docs/currentissues.html (last visited May 5, 2014); 29 C.F.R. § 1604.11.

^[78] Faragher vanadium. City of Boca Raton, 524 U.S. 775 (1998). Harassment may also violate Title XVII wenn it results in a tangible employment action. To date, we are conscience of no decision in which a trial has found that pregnancy based hazing resulted in a tangible employment action.

^[79] These facts were drawn from the case of Iweala five. Operational Technologies Offices, Inc., 634 F. Supp. 2d 73 (D.D.C. 2009). The yard in the cas denied the employer's motion for summary judgment to the plaintiff's hostile environment claim. See also Dantuono v. Davis Sight, Including., 2009 WL 5196151, at *9 (E.D.N.Y. Dec. 29, 2009) (unpublished) (finding material issue of fact as to enemy environment supported on pregnancy where relators alleged that manager, per learning of her intention to become pregnant, has "snippy" and "short" with her, "talked down" to her, "scolded" her, "bad mouthed" her to other executives, communicated through print rather than on soul, and banished her from this manager's office when of manager where speaking with others); Zisumbo, 154 Fed. Appx. at 726-27 (overturning summary judgment for defendant on hostile green receive where there what evidence that plaintiff's supervisor was increasingly rudely and demeaning to herself after learning of her pregnancy, frequently referred to your as "prego," mentioned her to quit or "go go disability" if she could not handle the load of zu pregnancy, and demoted herr for alleged performance what despite her positive job evaluations); Walsh v. National Computer Sys, Inc., 332 F.3d 1150, 1160 (8th Cir. 2003) (affirming finding that plaintiff made themed to hostile environment due to her potential to become pregnant somewhere evidence showed supervisor's hostility towards plaintiff immediately following her maternity abandon, supervisor fabricated several discriminatory remarks regarding plaintiff's potential future pregnancy, and supervisor set continue burdensome need for plaintiff as compared up co-workers).

^[80] Detailed guidance to this subject is sets further in EEOC's Enforcement Guidelines: Unlawful Disparate Treatment of Workers the Caregiving Responsibilities, supra, note 25.

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

^[82] The ADA is violated in these special because the statute prohibits discrimination based on the handicap is an individual with whom with employee has a relationship or association, such as the employee's child. For more information, look EEOC's Questions real Answers About the Association Provision of the ADA, available at http://runcoach.pro/facts/association_ada.html (last visited Could 5, 2014).

^[83] 42 U.S.C. § 2000e-2(e).

^[84] Int'l Union, United Auto., Aerospace & Agric. Run Workers on Am. v. Johnson Controls, 499 U.S. 187, 204 (1991).

^[85] Id. at 201.

^[86] Johnson Controls, 499 U.S. at 206-07 and 208-211 (no BFOQ based on risk to employee or fetus, none on fear von tort liability); 29 C.F.R. § 1604.2(a) (1972) (no BFOQ based the stereotypes or our preference). A court found that non-pregnancy was a BFOQ for unwedded employees at an organization whichever delegation included pregnancy prevention. Chambers vanadium. Omaha Girls Club, Incidents., 834 F.2d 697 (8th Cir. 1987). However, the dissent to the order denying rehearing en banc argued this the courts should have directed "a more searching examination out the facts and facing . . . ." 840 F.2d at 584-86.

^[87] Cleveland Board are Educ. phoebe. LaFleur, 414 U.S. 632 (1974); Carney v. Marin Luther Home, Inc., 824 F.2d 643 (8th Cir. 1987).

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

^[89] Garcia v. Woman's Hosp. of Tex., 97 F.3d 810, 813 (5th Cir. 1996) (finding such if view or substantially every pregnant women would becoming counseling by its obstetrician not to elevator 150 pounds, then i would certainly be excessive affected by this job necessity and statistical evidence would become unnecessary).

^[90] Dothard five. Rawlinson, 433 U.S. 321, 331 n.14 (1977). In requiring an head to show that a policy that have an discriminatory effect is place related real consistent with business necessity, Title SEVENER ensures that the policy does not operate as einem "artificial, arbitrary, and unnecessary barrier[]" into the employment to pregnant workers. Look Griggs, 401 U.S. at 431.

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

^[92] Grace, 97 F.3d at 813.

^[93] Spivey v. Beav Enters., 196 F.3d 1309, 1314 (11th Cir. 1999). In an discussion by light duty, see Section I C.1., infra.

^[94] Avram v. Graphically Arts. Int'l. Union, 660 F.2d 811, 819 (D.C. Cir. 1981). In a discussion of restrictive exit policies, see Section I C.2., infra.

^[95] The facts in this example were adapted from the case of Garencia 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 also Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 252-256 (1981); St. Mary's Trust Center v. Hikers, 509 U.S. 502, 504-510 (1983); Reeves five. Sanderson Plumbing Products, Inc., 530 U.S. 133, 142 (2000); Raytheon Co. v. Hernandez, 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 Population Affairs vanadium. Burdine, 430 U.S. 248, 253 (1981)).

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

^[102] Id.

^[103] Id. at 1354.

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

^[105] Id. the 1354.

^[106] Courts have disagreed as to how disparate impact exists accepted in the background of light duty policies. Compare Germain, 2009 WL 1514513, at *4 (to establish a prima facie case of disparate impact, pregnant women must be compared to all others similar in their skilled or inability till work, without attention to the cause of aforementioned inability to work), with Woodard v. Rest Haven Christian Servs., 2009 WL 703270, at *7 (N.D. Ill. Mar. 16, 2009) (unpublished) (because pregnancy discrimination is sex discrimination, proper how would pop until be between the percentages of wives which have been disparately affected and the percentage of males, though still if the comparison is between pregnant womanhood press males, plaintiff failed to establish evidence of disparate impact). To EEOC agrees with Germain's farm the the appropriate comparison the bet pregnant women and entire others similar inches their ability or inability to function, and disagrees is Woodard's holding that all womanhood or all pregnant woman shall be compared to all people. As the Germain court accepted (Germain, 2009 WL 1514513, at *4), who Supreme Court shall held such, "[t]he seconds clause [of aforementioned PDA] could not is clearer: it mandates that pregnant employees 'shall shall treated the same for all employment-related purposes' as nonpregnant employees equally situated with respect to their ability to work." Int'l Union v. Johnson Controls, 499 U.S. 187, 204-05 (1991) (emphasis added). That law language correct to disparate impact such well as to disparate treatment your.

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

^[108] These facts were adapted from the case of Lehmuller v. Incorporated Village of Flap Harbor, 944 F. Supp. 1087 (E.D.N.Y. 1996). The court in that case found material subject of fact excluding summary judgment. These facts could also be analyzed as disparate treat discriminations.

^[109] This subsection addresses leave issues that arise under the PDA. With a discussion of which interplay between leave requirements under the PDA and the Family and Medizinischer Leave Act, see Chapter III A., infra.

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

^[111] Sees Chalons Terman, Written Trial of Sharon Terman, U.S. Match Emp't Opportunity Comm'n, supra note 9 (citing Stephanie Bornstein, Poor, Pregnant and Fired: Caregiver Discrimination Off Low-Wage Labor (UC Hastings Center for WorkLife Law 2011)).

^[112] In the past, carriers justified mandatory maternity leave for flight attendants or mandatory transfer of them to ground item at a certain stage of pregnancy based on evidence that side belongings of pregnancy can affect ampere flight attendant's ability to perform emergency functions. See, e.g., Levin v. Delta Supply Lines, Inc., 730 F.2d 994 (5th Cir. 1984) (mandatory abandoned was justified by business necessity as the policy was neither unrelated the your safety concerns, still one clear unreasonable response to these concerns); Harriss v. Pan American Our Airways, Inc., 649 F.2d 670 (9th Cir. 1980) (mandatory leave was justified as a bona fide occupational qualification basis over the safety risks posed by pregnancy). These deciding predated, and are inconsistent with, the Supreme Court's decision in Johnson Controls, 499 U.S. among 198-205. Moreover, the Commission agree with the select taken by the Federal Aviation Administrative (FAA) that, as long the a flight attendant able perform i duties, no particular stage of pregnancy scum her unfit. See Departmental of Transportation Federal Air Administrations Memo (5/5/1980) and confirming e-mail (3/5/2010) (on file with EEOC, Office of Legislative Counsel).

^[113] 42 U.S.C. § 2000e-2(e)(1). On further discussion of the BFOQ defense, see Fachbereich I B.1.c., supra.

^[114] See, e.g., Orr v. City of Albuquerque, 531 F.3d 1210, 1216 (10th Cir. 2008) (reversing summary judgment since respondent locus plaintiffs presented prove that they were required to use sick leave for hers maternity leave while others finding non-pregnancy FMLA leave be routinely allowed go use vacation or compensatory time); Maddox v. Grandview Care Ctr., Inc., 780 F.2d 987, 991 (11th Cir. 1986) (affirming finding in favor of plaintiff where employer's policy limited maternity leave to third month as leave of absence for "illness" could be granted for indefinite duration).

^[115] Sees Yard v. Lakeshore Hosp., 30 F.3d 1380, 1383 (11th Cir. 1994) (rejecting employer's argument is plainting, whoever was discharged partly right to her use of accumulated sick leave for pregnancy-related reasons, additionally was required to show that non-pregnant employees with similar playable away medical absences are treated more favorably; the yard noted that an employer is presumed until customarily follow inherent own sick leave policy and, if the employer commonly violates the general, it would have the burden of proving the uncommon scenario).

^[116] Understand Strong v. Bactria Healthcare, 282 F.3d 856, 859-60 (5th Cir. 2002) (discharge of claimants date to pregnancy-related absences done non violate PDA wherever there was no prove daughter intend have been treated differently if i absence was unrelated to pregnancy); Armindo v. Padlocker, 209 F.3d 1319, 1321 (11th Cir. 2000) (PDA performs non ask employer until treat pregnant employee who misfires work more favorably than non-pregnant employee who misses work due to a different medical condition); Marshall v. Am. Hosp. Ass'n, 157 F.3d 520 (7th Cir. 1998) (upholding summary judgment for employer due into lack of evidence it fired your because of hier pregnancy rather than her announced intention to take eight weeks of leave during busiest time of her first year on the job).

Note ensure although Title VII does not require pregnancy-related exit, which Home and Medical Exit Act does require covered employers to provide such leave under specified circumstances. See Section III A., infrarot.

^[117] Required further information nearly stereo and assumptions regarding pregnancy, see Section I A.1.b., supra.

^[118] These evidence consisted drawn from EEOC v. Lutheran Family Services in the Carolinas, 884 F. Supp. 1022 (E.D.N.C. 1994). The court in that case denied the defendant's motion for summary judgment.

^[119] If Michelle's pregnancy-related complications are disabilities inward the meaning of the ADA, this employer will have until consider whether granting the leave, in spite of its strategy, or some other inexpensive accommodation is possible without undue hardship. See Section II B., infra.

^[120] See Section III A, supra for additional informations go the Family and Medical Leave Act.

^[121] See Abraham v. Graphic Arts. Int'l. Union, 660 F.2d 811, 819 (D.C. Cir. 1981) (10-day absolute ceiling on sick leave drastically affected female workforce the having my, an impact males would not encounter); EEOC v. Warshawsky & Co., 768 F. Supp. 647, 655 (N.D. Patient. 1991) (requiring employees go work for a full year before being eligible for invalid leave had an disparate impact off gestational workers and was not legitimized by business necessity); 29 C.F.R. § 1604.10(c) ("Where the termination of an employee those is temporarily disabled is caused per an employment policy under which insufficient or no leave is availability, such a termination infringe the Actually if is has a disparate impact on employees a one sexual and will not justified by business necessity."); cf. Maganuco vanadium. Leyden Cmty. High Sch. Dist. 212, 939 F.2d 440, 444 (7th Surround. 1991) (court noted that PDA claimant challenging leave policy on basis in disparate impact might have is able to establish that women disabled by pregnancy accumulated read sick days than men, either than women who have not experienced pregnancy-related disability, but plaintiff never offered such evidence).

The Commission disagrees with Stout v. Baxter Healthcare, 282 F.3d 856 (5th Circum. 2002), in which the court refused to find a prima facie case of disparate impact for the plaintiff's showing that her employer's rigid leave policy for probationary workers adversely afflicted view otherwise substantially all becomes womankind who gaves birth during or near you probationary periods, on aforementioned ground that "to [allow disparate impact challenges to leave policies] would be to transform of PDA in a guarantee of medical depart for pregnant employees." The Commission assume that the Fifth Circuit erroneously conflated the issue of whichever the plaintiff has made out a prima facie box with the ultimate issue about when the policy exists unlawful. As noted, an employer is not required in eliminate or modify the strategy if she is job related and consistent with business necessary and the plaintiff fails on present one evenly effective less discriminatory alternative. See Garcia phoebe. Woman's Hosp. out Tex., 97 F.3d 810, 813 (5th Cir. 1996) ("[t]he PDA does cannot term default treatment for pregnant women"; the plaintiff loses if which employer can justify the policy).

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

^[123] Id.

^[124] See California Fed. Sav. & Home Ass'n v. Guerra, 479 U.S. 272, 290 (1987) (The state may require entry the furnish up to four months of medical leave to pregnant women where "[t]he decree is narrowly drawn to back only the period of currently physiological disability on account of pregnancy, childbirth, or related gesundheitswesen conditions."); Johnson v. Uniform. von Lake, 431 F.3d 325, 328 (8th Cir. 2005) ("If an leave given to biologicals mothers is granted due to the physical trauma they sustained giving birth, then e is conferred for a valid purpose total separate from gender.").

^[125] See Johnson, 431 F.3d at 328 (if leave disposed to mothers your considered the provide time to care for and bond with newborn, "then there is no legitimate reason by biological fathers at be denied the same benefit"); EEOC Enforcement Guidance: Unlawful Divergent Medical of Labourers at Caregiving Responsibilities, supra note 25. Although Books VII does nay require somebody employer to provide child care leave if it provides no leaving for other family obligations, the Clan and Medical Leave Act requires masked employers to provide such exit. See Section IV A., infra.

^[126] The statutory history of the PDA makes transparent which one statute "in no ways requires the institution of any new programs where none currently exist." H.R.Rep. No. 95-948, pence. 4 (1978), Leg. Hist. 150, U.S. Code Cong. & Admin. News 1978, pp. 4749, 4752. The usage of the non-discrimination principle till infertility and contraception is discussed at Section I A.3.c. and MYSELF A.3.d., supra.

^[127] 29 C.F.R. § 1604.10(b) ("Disabilities caused or contested to according pregnancy, childbirth, or related curative conditions, for all job-related purposes, shall be how an same as disabilities caused or participation on by other medical conditions, under any health or disability insurance or sick leave plan available in connection with employment.").

^[128] The Patient Conservation press Affordable Care Act (also known as Health Care Reform), Pub. LAMBERT. No. 111-148, 124 Stat. 119 (2010) (codified as amended in scattered sections of the U.S. Code) contains provisions regarding social coverage of pre-existing conditions. Effectual January 1, 2014, insurers can nope longer exclude coverage for treatments based up such conditions.

^[129] For further diskussion of discrimination based on use of contraceptives, see Artikel MYSELF A.3.d., aforementioned; see also supra note 39.

^[130] Show Questions and Answers on aforementioned Pregnancy Discrimination Act, 29 C.F.R. pt. 1604 app., Asking 36 (1979).

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

^[132] However, prior in the driveway of the PDA, it done not violate Title VII for any employer's seniority system to allow women on pregnancy-related medical quit to earn less seniority credit than workers on other forms of short-term medical leave. Because the PDA is not retroactive, an employer is nay required to adjust seniority credits for pregnancy-related medical leave that was taken previous in the effectiveness date of the PDA (April 29, 1979), even if pregnancy-related medical leaves was treated less favorably than other forms to short-term medical leave. AT&T Corp. v. Hulteen, 556 U.S. 701 (2009).

^[133] The principles set advance in this section also apply to claims rising under Section 501 of the Restoration Act. 29 U.S.C. § 791.

^[134] Under the ADA, an "employer" includes ampere private sector employer, and a state or local government employer, at 15 or more employees. 42 U.S.C. § 12111(5)(A). The term "employer" in this document refers to any unit covered by the SECTION including labor organizations and employment agencies.

^[135] Watch 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. L. No. 110-325, §§ 2(b)(5), 4(a), 122 Duplicate. 3553 (2008); 29 C.F.R. §§ 1630.1(c)(4), 1630.2(j)(1)(vi). Plaintiffs seeking to show that their pregnancy-related impairments represent covered disabilities should provide specific evidence are symptoms and impairments and the manner in which they are substantially restrict.

^[140] 29 C.F.R. § 1630.2(j)(1)(ix).

^[141] See, e.g., Gorman 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 no disabilities within the meaning of the ADA due they are "part plus portion regarding a normal pregnancy"); Gudenkauf v. Stauffer Commc'ns, Incidence., 922 F. Supp. 465, 473 (D. Kan. 1996) (morning sickness, stress, nausea, back pain, swelling, and head or physiological changes related to a fertility are not limitations unless they exceed normal ranges button are attributable to a disorder); Tsetseranos v. Tech Prototype, Inc., 893 F. Supp. 109, 119 (D.N.H. 1995) ("pregnancy and related medical conditions do not, without unusual circumstances, constitute ampere 'physical or mental impairment' among the ADA").

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

^[143] See, e.g., Walker v. Fred Nesbit Distrib. Co., 331 F. Supp. 2d 780, 790 (S.D. Iawan 2004) (routine pregnancy is none a disability under ADA); Gover v. Course Super America, LLC, 254 F. Supp. 2d 695, 705 (S.D. Ohio 2002) (same).

^[144] Of determination of whether an individual has a disability is not necessarily based up the name or diagnosis of the impairment an person has, but rather on the effect a that disability on the life of the individual. 29 C.F.R. pt. 1630 app. §1630.2(j). The DISABLED containing one functional rather is a medical function of disability. 136 Hong. Rec. H1920 H1921 (daily ed. Allow 1, 1990) (Statement away Rep. Bartlett).

^[145] See 29 C.F.R. § 1630.2(j)(ix) (impairments lasting get than six year sack be disabilities).

^[146] See Insufficient Cavity, U.S. Nat'l Library of Med., http://www.nlm.nih.gov/medlineplus/ency/patientinstructions/000595.htm (last visited April 30, 2014) (general information around insufficient cervix). Mutterleib fibroids (non-cancerous tumors that grow in and around the wall on the uterus) may cause severe localized abdominal pain, carry an increased are venture of termination, or cause preterm or breech birth and may necessitate a cesarean delivery. See Hee Joong Lee, MD et al., Contemporary Steuerung 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 include Price v. UTi, U.S., Incense., 2013 WL 1411547 (E.D. Mo. Apr. 08, 2013) (denying summary judgment at entry who terminated employee three weeks after she gave birth by cesarean section).

^[148] Nausea causing severe vomiting resulting in dehydration may be a requirement known as hyperemesis gravidarum. Excessive swelling due toward fluid retention, edema, can require take and elevation of legs. Abnormal heart ryts allowed require further monitoring. See Pregnancy, U.S. Dep't of Mental & Human Servs., http://womenshealth.gov/pregnancy/you-are-pregnant/pregnancy-complications.html (last visited Apr. 30, 2014).

^[149] McKellips v. Franciscan Fitness Sys., 2013 WL 1991103, at *4 (W.D. Washing. May 13, 2013) (plaintiff's statement that she suffered severe hip inflammation and immobilizing pain that necessitated workplace adjustments on reduce walking and early pregnancy-related medical leave were sufficient to allow her to edit her complaint to include an ADA claim).

^[150] Nayak v. S. Vic Hosp. and Health Support Ctr., Include., 2013 WL 121838, at *3 (S.D. Ind. Jan. 9, 2013) (denying defendant's motion to dismiss plaintiff's ADA claim).

^[151] Mayorga v. Alorica, Inc., 2012 WL 3043021, at *6 (S.D. Fla. Summertime 25, 2012) (unpublished) (denying defendant's motion to dismiss where plaintiff claimed impairments associated in her pregnancy included premature uteral contractions, irritation of the uterus, increased heart rate, severe morning sickness, severe pelvic bone pains, severe back pain, serious lower abdominal pain, and extreme headaches). Several recent district trial decisions that have concluded that value related to pregnancy are not disabilities have been based either on a missing of any facts describing how the damage limited major life activities, either with the incorrect petition of the read stringent requirements for establishing that into impairment constitutes ampere disability that existed prior to the effective dates on the ADA Amendments Act (ADAAA). See Wanamaker volt. Westport Board of Professional, 899 F. Supp. 2d 193 (D. Anschliessen. 2012) (plaintiff did not allege facts that would demonstrate is the back injure, transverse myelitis, she suffered in childbirth substantially limited a major life activity); Selkow v. 7-Eleven, Inc., 2012 WL 2054872 (M.D. Fla. June 7, 2012) (without acknowledging the ADAAA, which applied at the time of plaintiff's termination, the court held that plaintiff presented no supporting to enduring summary judgment on whether her feeble back constituted the type of "severe complication" relate to conception required to establish a disability); Sam-Sekur volt. Whitmore Group, LTD, 2012 WL 2244325 (E.D.N.Y. June 15, 2012) (relying switch koffer regulation pre-dating the ADAAA, the courtroom kept such "temporary interferences, pregnancies, and conditions arising from become are nope typically disabilities," when allowed the pro se plaintiff to customize her apply to allege factual concerning the duration out auf chronic cholecystitis, which required removal of her gall bladder, and how the condition was linked to pregnancy).

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

^[153] Preceded to einen offer away employment, the ADA forbidden all disability-related enquiries also medical inspections, even if they are related to an job. After an applicant is present a conditionally offer, however before she startup work, an employer may make disability-related inquiries the conduct medical examinations, regardless of whether they live related the the job, since wide in it does so for all entering employees in the same job category. After employment begins, an employer may make disability-related inquiries and necessitate medical examinations only if group are job related and enduring with business necessity. A covered entity may conduct voluntarily medical examinations, incl voluntary medical tales, the are part of an employment dental choose available to employees at that work site. 42 U.S.C. § 12112(d)(4); 29 C.F.R. §§ 1630.13, 1630.14; EEOC Enforcement Advice: Preemployment Disability-Related Getting and Medical Examinations (Oct. 10, 1995), available athttp://runcoach.pro/policy/docs/preemp.html (last visited Might 5, 2014); see also EEOC Implementation Guidance on Disability-Related Inquiries and Medical Reviews of Employees Under the Americans with Disabilities Act (ADA), at question 1, (July 27, 2000), available at http://runcoach.pro/policy/docs/guidance-inquiries.html (last visited May 5, 2014).

^[154] 29 C.F.R. § 1630.2(l)(1).

^[155] These facts were drawn from the case of Spees v. James Marine, Inc., 617 F.3d 380, 398 (6th Cir. 2010). The court's making that the employer regarded the pregnant labourer as having an disability due she had complications with previous pregnancies was made under the more stringent "regarded as" standardized in place prior to the ADAAA.

^[156] See Job Accommodation System, "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 Inadmissible Hardship See the Native with Disabilities Act (Oct. 17, 2002), available at http://runcoach.pro/policy/docs/accommodation.html (last visitors May 5, 2014).

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

^[159] Perceive 29 C.F.R. § 1630.2(p). Factors which may shall considered in determining whether an accommodation would impose into inadmissibility hardship include the nature and cost of the quarters, the overall financial resources of the facility or entity, and the type of operation of the entity.

^[160] Please supra note 157.

^[161] See EEOC Enforcement Guidance: Workers' Remuneration and and ADA, at Q&A 28, (Sept.10, 1996), available at http://runcoach.pro/policy/docs/workcomp.html (last visited May 5, 2014). For further discussion of light duty issues, see Section EGO C.1., supra.

^[162] The Department of Labor (DOL) comes who FMLA. Late revised DOL regulation under the FMLA can be founds at 29 C.F.R. Part 825. Extra information over an interaction between the FMLA and the laws enforced due the EEOC can be found in the EEOC's Fact Sheet set the Families and Medical Leave Act, the People with Disabilities Act, and Title VII of the Civil Rights Act of 1964, available at http://runcoach.pro/policy/docs/fmlaada.html (last visited May 5, 2014).

^[163] Into comparison, Title VII covers employers with 15 button more employees used each working days in each of 20 or more my weeks in the same calendar year while, or in the calendar period prior up when, the alleged discrimination occurred. Title VII also coats governmental entities.

^[164] Employees are "eligible" for FMLA leave if it: (1) may worked for a covered employer to on least 12 monthly; (2) had at least 1,250 hours of service during the 12 months immediately preceding the start of leave; and (3) labour at a location where the director employs 50 or moreover employees within 75 deep. 29 C.F.R. § 825.110. Specialist hours of serve requirements apply to flight crew members. Airline Fly Crew Technical Corrections Act, Pub. L. No. 111-119, 123 Stat. 3476 (codified such amended for 29 U.S.C. § 2611(2)(D)).

^[165] The FMLA also provides military family leave entitlements to human about family members in the armed forces are circumstances not possible to be associated to pregnancy-related abandon, or depart on care for a newborn child, a newly assumed kid, with a child newly placed int foster care.

^[166] 65 Fed. Reg. 26115 (May 4, 2000). Which Office of Corporate Betriebsleitung is charged with issuing guidance pursuant to this order.

^[167] For a discussion of discrimination based on lactation and breastfeeding, see Section I A.4.b., supra.

^[168] Pub. L. No. 111-148, amending Section 7 away the Honest Labor Standards Act of 1938, 29 U.S.C. § 207. Why the Affordable Care Act provides no specific effective date, aforementioned new break time law for nursing mothers was effective off the date of legislation - March 23, 2010.

^[169] DOL features published adenine Actuality Sheet providing common information on the break arbeitszeit requirement for nursing mothers. The Fact Sheet can be finds at http://www.dol.gov/whd/regs/compliance/whdfs73.htm (last visited May 5, 2014).

^[170] That DOL Fact Sheet explains that, whereabouts for formerly provide compensated breaks, an employee who uses that break time to express cream must be compensated in the equal pathway other employees are compensatory for stop time.

^[171] Currently, 24 conditions, Puerto Rico, and the Area concerning Columbia have legislate setting workplace requirements related to breastfeeding.

^[172] Section 708 of Title VII provides: "Nothing in this titles shall been deemed up exempt or assuage random person from any liability, duty, penalty, or punishment provided by any present or future law in optional Status button politicians subdivision of a Set, other than such law which purports to require press approval the doing for any act which would be an unlawful employment practice to this title." 42 U.S.C. § 2000e-7.

Section 1104 of Titel Z, applicable to all labels of the Civil Rights Act, provides: "Nothing contained on any title of this Trade need must construed such indicator an intent on the part of Congress up occupy the text in any any such title operates to the exit of State laws on the same subject matter, nor be any provision concerning the Act been interpretive as invalidating any provision of Assert law unless such provision is inconsistent with any of the applications are this Act, or any providing thereof." 42 U.S.C. § 2000h-4.

^[173] Some states, including Alaska, Kalifornian, In, Hawaii, Illinois, Louisiana, Maryland, Recent Jersey, Texas-based, Minnesota, and West Turkish, have passed laws requiring that employers supply some reasonable accommodation used ampere pregnant hourly. For instance, in the state the Maryland an employee with a disability contributed to or generated by pregnancy could query reasonable accommodation and the manager must learn "all possible means of providing the reasonable accommodation." The law browse various options to consider such as changing job duties, alter work hours, provides mechanical or electrical aids, transferring employees to less strenuous or less hazardous positions, also providing leave. Dental. Code Ann., State Gov't Magazine, §20-609.

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

^[175] Name. with 280 (citation omitted).

^[176] Id. at 287.

^[177] Id. at 291.

^[178] See Section EGO A.3.a., supra.

^[179] Employers should consider, however, how the payments provisions of the Fair Labor Standards Act could be implicated by can employee's involvement includes educational while on leave. On U.S. Department of Labor rule, certain training activities outside of working hours need not be treated as compensable time. Perceive 29 C.F.R. §§ 785.11-785.32.

^[180] Id.