EEOC Issues New Enforcement Guidance on Pregnancy Discrimination

by Ballard Spahr LLP

The Equal Employment Opportunity Commission (EEOC) recently issued enforcement guidance on pregnancy discrimination and related issues. The guidance, accompanied by related Questions and Answers and a Fact Sheet for Small Businesses, marks the EEOC’s first comprehensive update on this issue since 1983 and an expansion of its stated view of employers’ obligations regarding pregnancy and pregnancy-related conditions. Significant areas addressed in the guidance include:

  • Unlawful discrimination and harassment on the basis of pregnancy, childbirth, or related medical conditions under Title VII of the Civil Rights Act of 1964 (Title VII), as amended by the Pregnancy Discrimination Act of 1978 (PDA)
  • The obligation of employers to provide pregnant workers equal access to benefits including leave, light duty, and health benefits
  • The availability of disparate impact claims when pregnant employees are disproportionately affected by the application of facially neutral rules, such as lifting restrictions, for which the employer cannot demonstrate business necessity
  • Treatment of lactating employees
  • Inclusion of individuals with pregnancy-related impairments under Title I of the Americans with Disabilities Act (ADA), which was adopted after the PDA and amended in 2008 to broaden the definition of disability

Much of the guidance reiterates well-established law on pregnancy discrimination. Such law includes the prohibition on taking an adverse action, such as reassignment or forced leave, against an employee on the basis of pregnancy, childbirth, or a related medical condition—even if the employer believes it is acting in the best interest of the employee or unborn child. In two areas, however, the EEOC has arguably sought to expand the reach of current law: requiring accommodation of pregnancy under the PDA and the ADA, as amended by the ADA Amendments Act (ADAAA), and directing that pregnant employees be treated the same as employees injured on the job when it comes to light duty policies. Both may have a significant impact on employer responses to requests by pregnant employees for light duty and other accommodations during and immediately following pregnancy.

First, although pregnancy itself is not a disability, the EEOC suggests that a broader range of temporary impairments associated with pregnancy may qualify as disabilities under the ADAAA, at least where employees can show that pregnancy-related conditions substantially limit their ability to perform one or more major life activities. However, even for pregnancy-related impairments that do not rise to the level of disabilities, the EEOC essentially imposes an accommodation duty on employers under Title VII, as amended by the PDA.

According to the guidance, an employer must treat pregnant workers with work restrictions the same way it treats non-pregnant workers—including workers with disabilities—whose ability to work is similarly limited, “whether by providing modified tasks, alternative assignments, leave, or fringe benefits.” Pregnant workers also may be entitled to workplace adjustments similar to accommodations provided to employees with disabilities, such as permission to take more frequent breaks or to keep a water bottle at a workstation. Nor may an employer “refuse to treat a pregnant worker the same as other employees who are similar in their ability or inability to work by relying on a policy that makes distinctions based on the source of an employee’s limitations.” Therefore, according to the guidance, an employer must provide a pregnant employee with a stool to sit down if it would be obligated to reasonably accommodate an employee with back or leg problems by providing a stool.

Second, the guidance expands the availability of light duty positions for many pregnant women. Currently, employers logically compare pregnant women to other employees with nonwork-related conditions to assess whether there is disparate treatment of a pregnant woman in the grant or denial of light duty. Rejecting this approach, even though the EEOC acknowledges that it has been accepted by courts, the guidance declares that an employer cannot treat a pregnant employee less favorably than employees who are injured on the job in assessing the right to light duty. So, if an employer makes light duty jobs available to employees injured on the job, it must make them available to pregnant women on similar terms. If there are restrictions on the number of positions made available, they can be applied to both groups.

The U.S. Supreme Court is likely to weigh in on this question in the near future. On July 1, 2014, the Supreme Court granted certiorari in Young v. United Parcel Service Inc., in which the U.S. Court of Appeals for the Fourth Circuit held, directly contrary to the position that the EEOC takes in the guidance, that an employer did not violate the PDA by refusing to provide light duty to a pregnant employee where it had a “pregnancy-blind” policy restricting such duty to certain categories of workers, such as those who were injured on the job. A decision in Young is expected to address the proper comparators for pregnant workers under the PDA and could also address the legality of such “pregnancy-blind” policies.

Also of note, the EEOC guidance addresses employer obligations regarding employees who breastfeed. The guidance states that lactation is a pregnancy-related medical condition under the PDA, and a breastfeeding 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.”

According to the guidance, an employer that allows employees to change their schedules or use sick leave to attend routine doctor appointments and to address non-incapacitating medical conditions therefore must allow employees to do the same for lactation-related needs under similar circumstances. This obligation is independent of the requirements of federal law—in particular, the 2010 amendment to the Fair Labor Standards Act that non-exempt employees must be provided with reasonable breaks and a private place to express milk—as well as state and local laws.

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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