For the first time in over 30 years, the Equal Employment Opportunity Commission (EEOC) recently issued a comprehensive update to its guidelines on pregnancy discrimination. The EEOC’s Enforcement Guidance on Pregnancy Discrimination and Related Issues (Guidance) provides the EEOC’s interpretation of the Pregnancy Discrimination Act (PDA) as well as the agency’s application of the expanded definition of “disability” under the Americans with Disabilities Act Amendments Act (ADAAA) to individuals with pregnancy-related conditions. The Guidance, along with a set of written questions and answers and a fact sheet for small businesses, can be found on the EEOC’s website. Although the Guidance does not carry the force of law, it is nevertheless important to understand it as the EEOC will certainly apply these guidelines to charges until the Supreme Court instructs otherwise. Moreover, while not required to follow the guidelines, courts may look to the EEOC’s Guidance when confronted with a pregnancy-related discrimination claim.

The Guidance was approved along party lines in a 3-2 vote, with the two Republican Commissioners—Constance Barker and Victoria Lipnic—voting against issuing the Guidance. In separate public statements, Commissioners Barker and Lipnic each voiced concern that the Guidance did not reflect current law, with Commissioner Barker stating that the Guidance “offered a novel interpretation of the PDA for which there was no legal basis” and Commissioner Lipnic describing the EEOC’s Guidance as legislative rather than interpretive. Both Commissioners also criticized the timing of the issuance of the Guidance. The Guidance was released on July 14, 2014, two weeks after the United States Supreme Court decided to review Young v. United Parcel Service, Inc., a case in which the Court will likely address whether and to what extent employers must provide light duty to employees with pregnancy-related work restrictions, and that ruling could moot controversial portions of the Guidance. Finally, both Commissioners questioned the failure to subject the Guidance to public comment before presenting it for a vote.

The PDA has two fundamental purposes: (1) prohibit discrimination based on pregnancy, childbirth, or related medical conditions, and (2) ensure that women affected by pregnancy, childbirth, or related medical conditions are treated the same as “other persons not so affected but similar in their ability or inability to work.” Much of the Guidance expresses noncontroversial positions as to these two fundamental requirements. For example, the Guidance explains, oftentimes with the aid of hypothetical examples, what actions are prohibited or required by the PDA, including the following:

• An employer cannot take an adverse employment action against an employee because of a past or current pregnancy, an intention to become pregnant in the future, or her childbearing capacity.
• An employer should not ask job applicants or workers whether they intend to become pregnant, because such an inquiry could be considered evidence of pregnancy discrimination.
• Harassment based on pregnancy is prohibited.
• An employer must allow women on pregnancy-related medical leave to accrue seniority in the same way as those on medical leave for reasons unrelated to pregnancy.
• An employer must provide employees with pregnancy-related conditions the same benefits, such as a medical leave of absence, that are provided to employees not affected by a pregnancy-related condition.
• To the extent an employer offers parental leave to bond with and/or care for the baby (as opposed to leave related to pregnancy or childbirth), such leave must be available to men and women equally.
• Because the Guidance considers lactation to be a pregnancy-related medical condition, employers must treat female employees who are lactating or breastfeeding the same as other employees with similarly limiting medical conditions. For example, if an employer allows employees to alter work schedules or use sick leave for routine medical appointments for non-incapacitating medical conditions, the employer must offer the same flexibility to lactating employees.

But other parts of the Guidance have prompted controversy—namely, portions of the Guidance reflecting the EEOC’s interpretation of the second fundamental requirement that women affected by pregnancy, childbirth, or related medical conditions are treated the same as “other persons not so affected but similar in their ability or inability to work.” One controversial aspect is the EEOC’s position that an employer must provide light-duty work to employees with pregnancy-related work restrictions even though the company policy makes light-duty work available only to employees who suffered an on-the-job injury. The EEOC reasoned that such a policy treats differently a pregnant employee who is similarly-situated in her ability or inability to work simply because of the source of her limitation, pregnancy versus on-the-job injury.

Significantly, this is the very issue in Young, and the EEOC’s position is contrary to the Fourth Circuit Court of Appeal’s conclusion, which held the PDA does not require employers to offer light duty to pregnant employees with work restrictions even if light duty is offered to certain non-pregnant employees. This conflict was a significant concern for both Commissioners Barker and Lipnic as both suggested that the more prudent course would have been to allow the Court to decide Young and then issue guidelines in light of the decision. Indeed, Commissioner Lipnic opined that the Supreme Court adopting a position in contravention of the Guidance “is far from an unlikely hypothetical or rhetorical question, insofar as no Circuit Court of Appeals has adopted the Commission’s position, and indeed, most have flatly rejected it.”

The most controversial aspect of the Guidance relates to the relationship between the PDA and the ADAAA. Although the Guidance reiterates the longstanding position that pregnancy is not itself a “disability” under the ADAAA, it notes that the 2008 amendment to the ADAAA broadened the definition of “disability” thereby making it more likely that pregnancy-related impairments—even temporary ones, such as pregnancy-related sciatica, conditions requiring bed rest, and gestational diabetes—may qualify as disabilities that trigger employer obligations under the ADAAA, including the duty to provide a reasonable accommodation. The Guidance provides a non-exhaustive list of possible reasonable accommodations, such as redistributing marginal job duties and modifying work schedules.

But the Guidance also suggests that an employee with a pregnancy-related work restriction is entitled to a reasonable accommodation even though she is not disabled under the ADAAA. The EEOC takes the position that pregnancy discrimination can be proven by showing the pregnant employee was treated less favorably than an employee covered by the ADAAA. For example, according to the EEOC’s Guidance, a pregnant employee with a lifting restriction due to her pregnancy should be compared to someone with a lifting restriction because of a back-related disability and thus must similarly be provided a reasonable accommodation unless the accommodation poses an undue hardship. Commissioners Barker and Lipnic objected to this portion of the Guidance. Commissioner Lipnic stated that this interpretation of the PDA “represent[s] a dramatic departure from the Commission’s prior position, and perhaps more important, contravene[s] the statutory language of the PDA.”

Despite the controversy surrounding portions of the Guidance, it is important for employers to review their policies and procedures, including those relating to light-duty opportunities, with these updated guidelines in mind. While the Guidance only reflects the EEOC’s interpretation of the PDA and is not law, employers should expect that the EEOC will enforce the provisions in its Guidance, and the EEOC will likewise expect employers to comply.