Pregnant Employees Now Entitled to ADA-Type Accommodations

by FordHarrison

Executive Summary: The EEOC has issued new guidance on the reach of the Pregnancy Discrimination Act ("PDA") that greatly expands the protections it claims all employers must provide to pregnant employees. The two most significant new provisions of this guidance are that (1) the PDA requires that pregnant employees be afforded the same job accommodations as Americans with Disabilities Act (ADA) qualifying disabled employees, and that (2) denying a pregnant employee light duty work pursuant to a policy limiting such work to employees injured on the job violates the PDA. Both positions obviously represent significant departures from prior EEOC policy and even case authority.

Key Points: The July 14, 2014 Enforcement Guidance on Pregnancy Discrimination and Related Issues ( is the first comprehensive updating of EEOC guidance on pregnancy bias since 1983. The update is likely driven in large part by the Obama Administration's stated intent to effect change through administration and regulation that it has been unsuccessful in effecting through legislation. On paper, however, it is tied to outdated prior guidance, a rise in EEOC charges claiming pregnancy discrimination, and the significant expansion of the class of qualifying disabled employees under the ADA Amendments Act (ADAAA).

The PDA generally requires that women affected by pregnancy, childbirth, and related conditions be treated the same as non-pregnant employees who are similar in their ability or inability to work. In the past, courts have held that the class of "similar" employees does not include ADA-qualified disabled employees or employees injured on the job. This meant that employers did not owe pregnant employees ADA-type accommodations and could enforce "pregnancy-blind" type policies such as light duty only for work-related injuries. But the new EEOC guidance greatly expands the class of employees to whom pregnant employees should be compared and thus purports to bar these prior practices.

Most significantly, the EEOC has now taken the position that an employee who is pregnant without any complication or impairment may still be entitled to an ADA-type reasonable accommodation under the PDA. That is because the EEOC believes that pregnant employees may be "similar in their ability or inability to work" to ADA-qualifying disabled employees and thus should be provided the same accommodations. In other words, employers may not "discriminate" against pregnant employees in favor of disabled employees.

The EEOC also reaffirmed its position that workers with impairments related to pregnancy may qualify as disabled under the ADAAA. It notes that the ADAAA has made it "much easier" for pregnant workers with pregnancy-related impairments to qualify as disabled: "[a]lthough pregnancy itself is not an impairment within the meaning of the ADA, and thus is never on its own a disability, some pregnant workers may have impairments related to their pregnancies that qualify as disabilities . . . even though they are only temporary." Examples listed within the guidance include disorders of the uterus and cervix which may require bed rest during pregnancy; gestational diabetes; and nausea causing severe dehydration.

Also within this new guidance the EEOC takes the position that denying a pregnant employee light duty work pursuant to a policy limiting light duty to employees injured on the job violates the PDA. It pointedly states that "the Commission rejects the position that the PDA does not require an employer to provide light duty for a pregnant worker if the employer has a policy or practice of limiting light duty to workers injured on the job and/or to employees with disabilities under the ADA." The EEOC acknowledged that this position has not been accepted by some courts, but stated that such decisions are "flawed" because the analysis is too restrictive.

This guidance is obviously controversial. It was approved over the dissension of the two Republican-appointed Commissioners, who objected to both the timing and manner of publication. It also is in jeopardy of being contravened by a forthcoming U.S. Supreme Court case that will consider which workers should be compared to pregnant employees and what treatment pregnant employees are entitled to. And of course there is some existing federal district and circuit court authority that contravenes this guidance.

Despite the controversial nature of the EEOC guidance, several states and municipalities have already enacted laws requiring the type of affirmative accommodation of pregnant employees that the EEOC seems to be trying to impose here. Employers are cautioned always to consult state and local law when evaluating legal obligations.

Employers' Bottom Line: This guidance presents significant practical challenges for air carriers. Work-related light duty policies are common in the industry, but now may need to be expanded to include pregnant employees. Moreover, carriers need to carefully consider whether ADA-type accommodations should now be afforded to pregnant employees regardless of whether they are covered by the ADA. And these practices will need to be revisited as the courts, and particularly the U.S. Supreme Court, consider these issues.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© FordHarrison | Attorney Advertising

Written by:


FordHarrison on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at:

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.
Feedback? Tell us what you think of the new!