Guidance Does Not Address State-specific Laws and Requirements

The U.S. Equal Employment Opportunity Commission has released its new enforcement guidance on pregnancy discrimination issues. This is the first time in three decades that the EEOC has updated its guidance. The guidance covers the Pregnancy Discrimination Act, pregnancy-related matters under the Americans with Disabilities Act and the Family Medical Leave Act, as well as several other federal laws. The EEOC also provided a fact sheet and question-and-answer document for small businesses. Notably, the guidance does not address California’s specific laws and requirements.

The guidance explains that under the PDA, discrimination based on pregnancy, childbirth or related medical conditions are prohibited forms of sex discrimination. Employers must treat pregnant employees and applicants the same way they treat non-pregnant employees and applicants who have similar physical limitations. Similarly, the ADA prohibits discrimination on the basis of disabilities, which may include impairments related to pregnancy though not the pregnancy itself.

The new enforcement guidance explains how these basic principles apply prior to, during and after a pregnancy. For instance, the guidance covers how employers should treat pregnant applicants for employment. Particularly, the guidance outlines breastfeeding and lactation rights of new mothers and also covers diverse advice for employers related to an employee’s infertility treatment, contraceptive use or abortions. The guidance also discusses the range of potential reasonable accommodations under the ADA that may be made for pregnant employees.

Employers should note that the EEOC guidance is not law. In fact, the recent release has sparked some criticism – including from the two republicans on the EEOC who opposed the decision to publish the guidance. Specifically, those objections relate to the decision to publish the guidance shortly after the Supreme Court decided to consider Young v. United Parcel Services, Inc., a Fourth Circuit Court of Appeals case addressing which employees to compare to a pregnant worker when determining if a similarly situated employee was treated differently and what entitlements or accommodations may be available to a pregnant employee. Critics assert the EEOC should have waited for the Supreme Court to weigh in on the issue before releasing its guidance.