Yesterday, by a 3-to-2 vote of commissioners, the U.S. Equal Employment Opportunity Commission (EEOC) approved a new guidance on the Pregnancy Discrimination Act (PDA). The first comprehensive update on the subject of discrimination against pregnant employees in over 30 years, the “Enforcement Guidance on Pregnancy Discrimination and Related Issues” supersedes the EEOC’s 1983 Compliance Manual chapter and provides the public with information regarding the rights and obligations of all parties under the PDA. In addition, the guidance discusses the application of the Americans with Disabilities Act (ADA) to pregnancy-related disabilities. The federal agency also issued a “Fact Sheet for Small Businesses: Pregnancy Discrimination,” a document of questions and answers explaining the guidance and providing direction for small businesses.

The Pregnancy Discrimination Act

Under the PDA, an employer cannot fire, refuse to hire, demote, or take any other adverse action against a woman if pregnancy, childbirth, or a related medical condition is a motivating factor in the adverse employment action. Therefore, pregnant women who are able to work must be permitted to do so subject to the same terms and conditions as other employees; when unable to work, they must be accorded the same rights, leave privileges, and benefits as other similarly-situated employees. The PDA requires that employers treat women affected by pregnancy or related medical conditions no differently from non-pregnant applicants or employees similar in their ability or inability to work.

The recent guidance reinforces the PDA’s treatment of discrimination based on pregnancy, childbirth, or a related medical condition as a form of sex discrimination. The guidance reviews the obligations that the PDA imposes on employers with regard to discrimination, harassment, medical leave, parental leave, benefits, health insurance, light duty requests, and other accommodations. Among the topics covered by the guidance are the following:

• the law’s general prohibitions and requirements, including the protection of individuals who are not currently pregnant, examples of pregnancy-related medical conditions, and whether an employer may ask an employee or applicant if she is currently or intends to become pregnant;
• discrimination based on an employee’s caregiving responsibilities, including relevant prohibitions under Title VII of the Civil Rights Act of 1964 and protections provided to employees under the Family and Medical Leave Act after the birth of a newborn or the adoption of a child;
• employers’ safety concerns regarding the employment of pregnant employees as balanced against an employment requirement that a pregnant worker be able to perform the duties of her job;
• the PDA’s prohibition of harassment based on pregnancy, childbirth, or related medical conditions; and
• employers’ responsibility to treat employees who are temporarily unable to perform the functions of their jobs because of pregnancy or related medical conditions in the same manner as other employees in terms of alternative assignments, fringe benefits, and modified tasks.

The Americans with Disabilities Act

Title I of the ADA forbids discrimination on the basis of a disability in any aspect of employment, including hiring, firing, pay, job assignments, promotions, layoffs, training, fringe benefits, and any other term or condition of employment. The ADA likewise requires employers to provide reasonable accommodations to qualified individuals with disabilities if doing so would not impose an undue hardship on the operation of the employer’s business. While pregnancy is not an impairment that qualifies as a disability within the meaning of the ADA as amended in 2008, the guidance states that, “in some circumstances,” workers with pregnancy-related impairments are covered under the ADA’s definition of “disability.” Accordingly, some pregnant workers may have impairments related to their pregnancies that amount to ADA-qualifying disabilities. The guidance reviews a number of examples of pregnancy-related medical conditions that would qualify as a disability and thus give rise to an employer’s duty to accommodate. In addition, the guidance provides examples of reasonable accommodations that employers may be required to implement for disabilities caused by pregnancy-related impairments.

Other Laws

In addition to the PDA and ADA, the guidance addresses the relevant protections provided under the federal Family and Medical Leave Act, including its requirement to provide certain employees with pregnancy-related or child care leave. The guidance also briefly mentions Executive Order 13152168, which prohibits discrimination in federal employment based on an individual’s status as a parent, and section 4207 of the Patient Protection and Affordable Care Act, which requires employers to provide reasonable break times for nursing mothers until the child’s first birthday.

Best Practices

The guidance concludes with a series of “suggestions for best practices that employers may adopt to reduce the chance of pregnancy-related PDA and ADA violations and to remove barriers to equal employment opportunity.” In light of the new guidance, the EEOC suggests that employers take a number of actions with regard to their general policies, in terms of hiring and promotion, leave and fringe benefits, the terms and conditions of employment, and reasonable accommodations. The recommended actions involve the development and review of policies affecting leaves, light duty requests, reasonable accommodations, and pregnancy and disability discrimination.

Problems, Predictions, and Future Concerns

As delineated in two dissenting opinions, the guidance announces significant changes that must be brought to an employer’s attention. According to EEOC Commissioners Constance S. Barker and Victoria A. Lipnic, the guidance offers an interpretation of the PDA for which there is no apparent legal basis. Both commissioners have distributed public statements detailing their reasons for voting against the newly-issued draft and citing fatal flaws to the now-approved guidance. Both have deplored the failure of the EEOC to provide an opportunity for public comment on the draft guidance before its issuance in final form.

In the section on “Persons Similar in Their Ability or Inability to Work,” Commissioner Barker stated that the EEOC introduced an entirely new legal interpretation of the PDA, which is unsupported by congressional intent and current case law. According to Commissioner Barker, despite the lack of legal authority, the guidance suggests that the PDA requires employers to give reasonable accommodations to all employees who have work restrictions because of their pregnancy. This gives even those women who do not have a disability as defined by the ADA a right to reasonable accommodations that is similar to the right of individuals with disabilities.   In effect, the guidance permits all pregnant employees who are restricted in their ability to work to bypass the ADA’s requirements for protection—namely, that the employee be disabled and qualified for the position with or without a reasonable accommodation. The EEOC thus pioneered a new interpretation of the PDA, analyzing the act not only as a nondiscrimination law, but as a reasonable accommodation law.

Moreover, in the section on “Light Duty Work Assignments,” Commissioner Barker noted that the guidance wrongly interprets the PDA to require employers with policies limiting light duty work to those who have been injured on the job, to also offer light duty work to pregnant employees (who have not been injured on the job). The Supreme Court of the United States will consider similar issues next term when it reviews a case on appeal from the Fourth Circuit Court of Appeals. The case concerns whether and to what extent the PDA requires employers to provide accommodations to pregnant employees. We will keep you abreast of any new developments in this area.