On July 14, the Equal Employment Opportunity Commission (EEOC) issued updated enforcement guidance on pregnancy discrimination and related issues, along with a question and answer document about the updated guidance and an employer fact sheet. The updated enforcement guidance offers insight into how the EEOC will enforce the Pregnancy Discrimination Act (PDA). As expected, the guidance confirms that the EEOC will broadly interpret when pregnancy-related conditions will be considered disabilities under the Americans with Disabilities Act (ADA). Also, for the first time, the EEOC takes the position that the PDA requires employers to offer temporary light duty assignments to pregnant employees with work restrictions if the employer provides the same accommodation to non-pregnant employees who have similar work restrictions.

This guidance comes after the EEOC has focused much attention on an employer’s obligations to provide reasonable accommodations to disabled individuals under the ADA Amendments Act, which itself extended coverage of the ADA of a much larger group of applicants and employees. The EEOC’s latest pronouncement takes this even further, reasoning that pregnant employees must be provided reasonable accommodations to level the playing field with their non-pregnant counterparts.

The EEOC recently has identified pregnancy discrimination claims as a priority in its enforcement efforts. During FY2013 alone, more than 5,300 charges were filed with the EEOC alleging pregnancy discrimination. In announcing the updated guidance, EEOC Chair Jacqueline A. Berrien affirmed that the EEOC continues to process a significant number of charges alleging pregnancy discrimination, and stated that the EEOC’s investigations have purportedly “revealed the persistence of overt pregnancy discrimination, as well as the emergence of more subtle discriminatory practices.” This new guidance, which was forecasted last month on our FMLA Insights blog, is evidence of the EEOC’s priorities in this area.

The Specifics of the Guidance

The updated enforcement guidance begins by reaffirming the fundamental requirements under the PDA that an employer cannot discriminate against an employee on the basis of pregnancy, childbirth, or related medical conditions; and that female employees affected by pregnancy, childbirth or related medical conditions must be treated the same as other employees who are similarly situated in their ability or inability to work. The remainder of the guidance is divided into four parts:

• Part I provides guidance on the prohibition against pregnancy discrimination, including the individuals to whom the PDA applies, the ways in which violations of the PDA can be demonstrated, and the PDA’s requirement that pregnant employees be treated the same as employees who are not pregnant but who are similar in their ability or inability to work, focusing especially on light duty and leave policies;
• Part II addresses the impact of the ADA’s expanded definition of “disability” on employees with pregnancy-related impairments, particularly when employees with pregnancy-related impairments would be entitled to reasonable accommodation, and describes specific accommodations for pregnant employees;
• Part III briefly describes requirements beyond the PDA and the ADA that affect pregnant employees, including the Family and Medical Leave Act and relevant state laws; and
• Part IV contains best practices for employers.

The updated guidance provides the EEOC’s position on a number of key issues that substantially impact employers, including:

• The fact that the PDA covers not only current pregnancy, but discrimination based on past pregnancy and a woman’s potential to become pregnant;
• Lactation as a covered pregnancy-related medical condition under the ADA;
• The circumstances under which employers may have to provide light duty for pregnant workers;
• Issues related to leave for pregnancy and for medical conditions related to pregnancy;
• The PDA’s prohibition against requiring pregnant workers who are able to do their jobs to take leave;
• The requirement that parental leave (which is distinct from medical leave associated with childbearing or recovering from childbirth) be provided to similarly situated male and female employees on the same terms;
• The circumstances under which employers may have a duty to provide reasonable accommodations for workers with pregnancy-related impairments under the ADA and the specific types of accommodations that may be necessary; and
• Best practices for employers to avoid unlawful discrimination against pregnant workers.

Highlighting the import of this new guidance, several EEOC Commissioners have issued statements of their own. In support of the guidance, Commissioner Chai Feldblum commented that the Enforcement Guidance “is simple and relies on a plain text reading of the PDA—the words of the statute require that employers treat pregnant employees the same as they treat other employees similar in their ability or inability to work.” You can read her full statement here.

Other EEOC Commissioners, Victoria Lipnic and Constance Barker, criticized the guidance, largely arguing that it was issued without public comment and review and that it was issued prematurely given that the Supreme Court will be taking these issues up in Young v. UPS, which will be argued before the Court next term. The Young case focuses on whether, and in what circumstances, the PDA requires an employer that provides work accommodations to non-pregnant employees with work limitations to also provide work accommodations to pregnant employees with similar work limitations. For more information on the case, see our previous alert here.

Accommodating pregnant employees continues to be a hot topic in Illinois as well. As we previously reported, the Illinois General Assembly recently passed legislation which will significantly expand the protections provided to pregnant employees under the Illinois Human Rights Act beginning January 1, 2015. It is anticipated that Governor Quinn will sign this legislation. 

Insights for Employers

The EEOC’s guidance is groundbreaking, and its impact will affect the manner in which employers provide accommodations to their employees. Due to the EEOC’s continued scrutiny and enforcement focus on pregnancy discrimination, and the agency’s broad interpretation of employers’ obligations under federal law, employers are well-advised to review their accommodation policies and practices as soon as possible to minimize exposure to pregnancy discrimination claims. Additionally, assuming Governor Quinn will follow through on his call to increase protections for pregnant employees, Illinois employers will also need to be prepared to comply with the recent amendments to the Illinois Human Rights Act beginning on January 1, 2015.