On July 14, 2014, the Equal Employment Opportunity Commission ("EEOC"), by a 3-to-2 vote of commissioners, issued Enforcement Guidance on Pregnancy Discrimination and Related Issues (the "Guidance"), along with a question and answer document about the Guidance and a Fact Sheet for Small Businesses. The Guidance is the first attempt to provide a comprehensive update on the subject of pregnancy discrimination by the EEOC since 1983. In the Guidance, the EEOC seeks to set forth employers' obligations to pregnant employees under the Pregnancy Discrimination Act of 1978 ("PDA") and discusses the EEOC's current position with respect to the application of the Americans with Disabilities Act, as amended in 2008 ("ADA"), to individuals who have pregnancy-related disabilities.
The Guidance can be found here.
What Is the PDA?
The PDA is an amendment to Title VII, which simply clarified that "gender" discrimination includes "pregnancy" discrimination, forbidding discrimination based on pregnancy pertaining to any aspect of employment, including hiring, firing, pay, job assignments, promotions, layoff, training, fringe benefits such as leave and health insurance, and any other term or condition of employment. In its Guidance, the EEOC explains its position that the PDA covers not only current pregnancy but discrimination based on past pregnancy and a woman's potential to become pregnant.
What Does the ADA Have to Do with the PDA?
In the newly issued Guidance, the EEOC takes the position that aspects of the ADA's reasonable accommodation requirement should be incorporated into the PDA for pregnant employees. Therefore, even if a woman is temporarily restricted from certain job duties as a result of a routine pregnancy (which, under applicable case law, has been held not to be covered under the ADA), the Guidance suggests it is covered by the PDA and employers should utilize accommodations associated with the ADA. In addition, the Guidance states that a pregnancy-related condition such as gestational diabetes, preeclampsia, or lactation, may be considered a disability under the ADA requiring a reasonable accommodation.
What Else Does the Enforcement Guidance Require?
The EEOC's newly issued Guidance calls for equal parental leave for bonding for fathers and mothers. In an apparent response to the Supreme Court's ruling in Burwell v. Hobby Lobby, 573 U.S. --- (2014), the Guidance also requires employers to offer insurance coverage for contraceptives. However, in the Guidance the EEOC states that it is interpreting the PDA, not the Affordable Care Act ("ACA"), which was the sole subject of the Supreme Court's ruling in Hobby Lobby.
Effect of the Enforcement Guidance
The EEOC issued this Guidance without a notice and comment period. Ironically, a federal agency's authority to issue guidance such as this is also before the Supreme Court in Nickols v. Mortgage Bankers Ass'n, albeit with regard to a different law. The EEOC's Guidance is not binding on the courts, but employers still need to be aware of it because the courts may defer to it. In the past, the EEOC has cited its enforcement guidance in court as persuasive authority for the interpretation of Title VII and some courts have deferred to agency guidance seeking to impose obligations beyond those expressed in the laws. Employers should read the Guidance and ensure that their policies and training are updated accordingly. One of the EEOC's top five enforcement priorities is pregnancy discrimination, and this Guidance may be used by EEOC investigators when investigating pregnancy charges.