Pregnancy Guidance Seems to Require Light Duty For All

by Sands Anderson PC

The EEOC’s pregnancy discrimination guidance issued July 14 affects more than just the rights of pregnant women in the workplace. Although nominally titled as an enforcement guidance regarding “pregnancy discrimination,”  the guidance potentially reaches beyond pregnant employees to employees with a disability regardless of cause.

The EEOC’s guidance holds that impairments related to pregnancy may qualify for accommodation as a disability under the ADA, and if light duty is offered to injured workers, it must also be offered to qualifying pregnant workers as a reasonable accommodation. 

Taking the guidance examples to their logical conclusion, however, the  EEOC appears to be pronouncing that if an employer provides light duty for employees injured on the job, it must also do so for all other employees who are similar in their ability or inability to work. Similarly, if a worker has a significant disability, even a temporary one (regardless of cause), then according to the guidance, accommodation is required unless it creates an undue hardship.

As a guidance, the EEOC’s pronouncement is not “law” but is a statement as to how the EEOC will interpret charges that come before it for review.  As employers know, however, stating that the guidance is not law is of little solace if it means that the employer receives a “cause” finding that can later be used in court against action it took. What this means practically is that unless a company has funds to mount a defense to the legality of the EEOC’s position, then compliance with the guidance is the road of least risk.

Keep in mind that some of the positions set forth in the guidance are consistent with the Fourth Circuit’s recent legal ruling in Summers v. Altarum Institute Corp., where the 4th U.S. Circuit Court of Appeals held in a case of first impression that workers with temporary but severe medical conditions qualify for protection under the Americans with Disabilities Act, as amended. (“ADA”).  (We wrote about this case in a previous blog where we stated that pursuant to the Court’s ruling, certain qualifying pregnancy conditions could qualify for reasonable accommodation under ADA  even though temporary.)  

The EEOC issued its opinion that light duty must apply to pregnant employees with work limitations similar to injured workers in spite of court opinions to the contrary and the pending  challenge of this position  before the U.S. Supreme Court. In the case of Young v. UPS  now before the U.S. Supreme Court, the 4th U.S. Circuit Court of Appeals held that it is not discrimination for light duty to be a benefit to one group of employees but not to another with similar work limitations. That case will be heard in October. Until then, the  EEOC’s pronouncement is in direct contradiction to the law of the 4th Circuit, leaving employers in this judicial circuit in a quandary regarding application of light duty leave.

Until the U.S. Supreme Court decides whether or not light duty must apply to all similarly situated employees, employers should proceed with caution regarding requests for light-duty work, and as always, communicate with employees to determine possible reasonable accommodations.

            Key elements of the new guidance include the following:

  • Pregnancy by itself is not a disability. 
  • Pregnancy- related impairments that impose work-related restrictions may be substantially limiting and therefore qualify as a disability, even though they are only temporary. Therefore, such individuals are protected by the Americans with Disabilities Act, as amended in 2008, and reasonable accommodations must be provided. As noted, this position is consistent with the ruling in the Summers opinion referenced above. 
  • If an employer provides light duty to injured workers, it must also provide such duty under the same terms to similarly situated pregnant employees.  
  • “A policy that excludes pregnant workers from benefits offered to non-pregnant workers similar in their ability or inability to work based on the cause of their limitations, such as a policy that provides light duty only for individuals injured on the job, does not constitute such a legitimate, non-discriminatory reason.”   
  • Taking this reasoning to its logical conclusion, it would appear that the EEOC would apply the same rationale to all individuals with a disability, not just the subset of pregnant employees who have a disability. 
  • The EEOC guidance states that employers might be able to impose limits on light duty work if those limits apply across the board (i.e. a limit on the total number of such positions available), and such limits can be justified.  Such a statement should not be taken as a license to simply limit the number of light duty positions in your company.  The ADA requires a case-by-case analysis and a light duty position may be reasonable under certain circumstances even if a limit is established.  
  • Note that the EEOC is clear that it will be seeking explicit comparative data on every individual who has taken leave in the company for a period of time, the circumstances of the leave, and the circumstances of each worker’s  ability or inability to work in order to determine if the company’s position was non-discriminatory.  Beware the examples that seem to approve “position limits”  and other limits on light-duty leave.  It is clear that all such limits will be subject to challenge and detailed comparative proof. 
  • The Guidance requires an examination of leave policies that have a limit on sick days and deny sick leave during the first year of employment.  The EEOC finds that such limitations have been found to disparately impact pregnant women (and presumably the larger set of individuals with a disability).  
  • The Guidance provides specific examples of reasonable accommodations that may be necessary for a pregnancy-related impairment as well as reviews other laws that affect pregnant workers. 
  • The EEOC published this guidance in spite of the issuance of the U.S. Supreme Court’s opinion in the Hobby Lobby decision that held that closely held corporations were not required to provide contraceptives under the Affordable Care Act.  The guidance notes that “Employers can violate Title VII by providing health insurance that excludes coverage of prescription contraceptives, whether the contraceptives are prescribed for birth control or for medical purposes.” Thus this provision will most likely be subject to challenge as well. 

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.

© Sands Anderson PC | Attorney Advertising

Written by:

Sands Anderson PC

Sands Anderson PC 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.
Custom Email Digest
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.