The EEOC’s Updated (and Expanded) Guidance on Pregnancy Discrimination
On July 14, 2014, the U.S. Equal Employment Opportunity Commission (EEOC) released its Enforcement Guidance on Pregnancy Discrimination and Related Issues, along with a Q&A document and a Fact Sheet. The agency indicated that it has been seeing a significant number of charges alleging pregnancy discrimination. The enforcement guidance is meant to “aid employers, job seekers, and workers in complying with the Pregnancy Discrimination Act (PDA) and the Americans with Disabilities Act (ADA)…”
The EEOC’s press release states that “[m]uch of the analysis in the enforcement guidance is an update of longstanding EEOC policy.” However, the obligations on employers outlined in the guidance are broader in a number of ways than those presented in the agency’s 1983 Compliance Manual, which the EEOC makes clear is superseded by the new enforcement guidance. In addition, the enforcement guidance for the first time emphasizes an overlap between the Pregnancy Discrimination Act and the Americans with Disabilities Act, explaining how the ADA’s definition of “disability” might apply to workers with impairments related to pregnancy.
Some of the new provisions in the enforcement guidance include:
- Lactation as a covered pregnancy-related medical condition
- The requirement to provide reasonable accommodations under the ADA for workers with pregnancy-related impairments, including back pain, increased water intake, and lifting restrictions
- Clarification that the PDA covers not only current pregnancy, but also past pregnancy and a woman’s “potential to become pregnant”
- A pronouncement that parental leave (which the agency distinguishes from unpaid FMLA leave taken to recover from childbirth) must be provided to both men and women on the same terms • Prohibition against discrimination based on infertility treatment or the use of contraception (subject to the exception granted to a small subset of employers based on religious grounds in the recent Supreme Court Hobby Lobby decision)
One of the most notable changes for employers is the EEOC’s announcement that light duty may not be denied to “women affected by pregnancy, childbirth, or related medical conditions” if it is given to employees for any other “employment-related purposes.” For example, under this rule, an employer who denies a pregnant woman light duty based on a policy that light duty is available only to employees who have sustained an on-the-job injury would violate the PDA. However, this rule could be made moot by the Supreme Court, which agreed less than two weeks before the guidance was released to hear a case on this very issue in Young v. United Parcel Service.
In the meantime, employers should consult with counsel as to whether their policies and even benefit programs need to be revised to comply with at least parts of this guidance.