On July 14, 2014, the EEOC issued Updated Enforcement Guidance on Pregnancy Discrimination, as well as a set of Questions and Answers and a Fact Sheet for small businesses related to that Guidance.  This is the first comprehensive update to the Commission’s pregnancy discrimination guidance since 1983.  eeoc

Pregnancy discrimination has been more on the EEOC’s radar in recent years, as evidenced by the fact that the agency identified that specific type of disparate treatment as a focus area in its latest strategic plan.  Part of the reason the EEOC is looking more closely at this area lies in the agency’s attempts to expand protection in the area of disability and accommodations under both the Americans with Disabilities Act (ADA) and the 2008 Amendments to that law (ADAAA).  The Commission has been looking to address the interplay between their more expansive interpretations of those laws and the Pregnancy Discrimination Act (PDA), which does not include a “reasonable accommodation” requirement.  In fact, a central part of the updated Guidance is the EEOC’s admonition that it is now much easier to demonstrate that pregnancy-related impairments are “disabilities” under the ADA entitled to a reasonable accommodation.

The Guidance also requires employers to consider providing light duty, alternative assignments, disability leave, or extended unpaid leave as “reasonable accommodations” for pregnant employees, if it does so for other employees who are similar in their ability or inability to work.  Put another way, an employer cannot deny light duty to a pregnant worker based on a policy that limits light duty assignments to those with on-the-job injuries.  Additional examples of “reasonable accommodations” noted by the Guidance include redistributing marginal or nonessential job functions, or altering how a function is performed (e.g., another worker does lifting); modifying policies (e.g., more breaks); modifying work schedules to accommodate severe morning sickness; and purchasing or modifying equipment, such as a stool for the pregnant worker.

The Guidance doesn’t just focus on the ADA, of course.  The Guidance further notes that the PDA protects pregnant workers from discrimination arising from current, past, and potential pregnancy – even if the employer believes its actions are in the employee’s best interest.  For example, an employer may not exclude a woman from a job handling certain chemicals out of fear that they could harm a developing fetus.  Additionally, the EEOC makes clear in the Guidance that, under the PDA, employers who have health insurance benefit plans must treat pregnancy-related costs the same as medical costs unrelated to pregnancy.

Beyond the substance of the Guidance, there were several aspects about the process and timing of it which raise eyebrows.  For example, the EEOC issued the Guidance without first making it available for public comment.  Additionally, 2 of the Commissioners — Commissioner Lipnic and Commissioner Barker – voted against the Guidance.  Commissioner Lipnic, in particular, questioned the timing of the Guidance, since the United States Supreme Court just decided about a week ago to hear the appeal in Young v. United Parcel Service, Inc., a Fourth Circuit Court of Appeals decision which will address significant questions covered by the Guidance.  Commissioner Lipnic noted that the Court’s decision in Young could moot the Guidance and boldly stated that “no Circuit Court of Appeals has adopted the Commission’s position, and indeed, most have flatly rejected it.”

Employers should keep in mind that state law requirements may also govern the way employers treat pregnant workers.  For example, West Virginia recently adopted the Pregnant Workers’ Fairness Act, which prohibits employers from discriminating against applicants or employees because of pregnancy, childbirth or related conditions.  If you want to know more about that law, you can read what we wrote about it here.  That Act also requires employers to reasonably accommodate a woman’s pregnancy-related limitations.  More and more states are enacting similar laws nationwide.

With all the new laws and guidance relating to pregnancy discrimination and pregnancy accommodations, both at the state or federal level, dealing with pregnancy-related issues is getting extremely complex.  If you have any doubts about how to address issues presented by pregnant employees in your workplace, consulting with competent counsel is certainly advised.

Jami Suver focuses her practice in the area of labor and employment law.
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