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 4^th 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 4^th 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 4^th 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.