EEOC’s New Enforcement Guidelines Expand Employers’ Obligations Toward Pregnant Employees

by Snell & Wilmer
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In July 2014, the Equal Employment Opportunity Commission (EEOC), on a 3-2 vote, issued new “Enforcement Guidance” on pregnancy-related issues. These new Guidelines significantly expand employers’ obligations and expressly require employers to accommodate pregnant employees, including providing light duty positions, even if such positions are generally reserved only for employees who are disabled due to workplace injuries.

The Pregnancy Discrimination Act of 1978 (PDA) mandates that “women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes” as non-pregnant employees. Courts have grappled with the meaning and application of the PDA, particularly with respect to accommodations and light duty positions. One salient case, Young v. United Parcel Service Inc., issued by the U.S. Court of Appeals for the Fourth Circuit, is currently pending before the U.S. Supreme Court. A ruling in that case is expected to opine on when an employer is required to provide light duty positions to pregnant employees. The very recent timing of the EEOC Guidance led one of the two EEOC commissioner dissenters to the Guidelines to oppose them, stating that the Guidance “may well be mooted in the very near future depending on how the Court decides Young.

The Enforcement Guidance significantly expands an employer’s obligation to accommodate pregnant employees. The Guidance applies the standards of reasonable accommodations under the Americans with Disabilities Act (ADA) to the PDA, and to pregnant employees under both a disparate treatment and disparate impact analysis. Accommodations are required for pregnant women, regardless of the severity of their condition or whether it is a typical symptom of pregnancy. The Guidance further provides that reasonable accommodations for pregnant employees might include “allowing a pregnant worker to take more frequent breaks, to keep a water bottle at a work station, or to use a stool; altering how job functions are performed; or providing temporary assignment to a light duty position.” The Guidance also states that employers may not exclude pregnant workers from access to light duty positions reserved only for workers injured on the job. This is so even if non-pregnant employees are also denied such positions, if the policy would have a disparate impact on pregnant employees, or if the employer has made exceptions in the past.

The Guidance also clarifies EEOC views on a number of other pregnancy-related issues. For example, it clarifies that discriminating based on past or future pregnancy is a violation of the PDA. Also, if an employer provides non-medical parental leave for mothers (e.g., baby bonding time), it must also provide the same amount of leave for fathers. The Guidelines also state that lactation is a pregnancy-related medical condition and that “[a]n employee must have the same freedom to address such lactation-related needs that she and her co-workers would have to address other similarly limiting medical conditions.”

Although Enforcement Guidance from the EEOC is not binding on the courts, many courts find the EEOC Guidance persuasive in cases. Moreover, EEOC enforcement Guidance implicitly influences how the EEOC evaluates charges against employers and investigates claims of PDA violations. Thus, employers should be aware of the EEOC’s expressions of how the PDA will be enforced, and consider whether any policies may need to be modified.

Employers should take note of the EEOC’s importation of ADA accommodation principles to the PDA, and review their anti-discrimination, benefits, leave of absence, light duty and accommodation policies to consider whether they need to be changed to reflect the EEOC’s current position. Employers should also stay tuned for the U.S. Supreme Court’s decision in Young v. United Parcel Service Inc., which is expected later this year.

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.

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