The recent guidance provides insight into what the EEOC is likely to determine is pregnancy discrimination

In July 2014, the EEOC issued “Enforcement Guidance: Pregnancy Discrimination and Related Issues,” as well as “Questions and Answers and a Fact Sheet for Small Businesses.” Although the guidance is not the law, it does provide insight as to how the EEOC approaches pregnancy discrimination investigations, and the more than 20 examples are helpful in determining what the EEOC is likely to determine is pregnancy discrimination.

The EEOC enforces two laws that affect pregnancy in the workplace: the Pregnancy Discrimination Act (PDA) and the Americans with Disabilities Act (ADA). Much of the guidance is not surprising. It notes that the PDA has two fundamental requirements:

  1. An employer may not discriminate against an employee on the basis of pregnancy, childbirth or related medical conditions.
  2. Women affected by pregnancy, childbirth or related medical conditions must be treated the same as other persons not so affected but similar in their ability or inability to work.

The PDA covers current, past or future pregnancy and all aspects of employment—hiring, firing, promotions, health insurance benefits and treatment as compared with non-pregnant employees. The guidance also includes a section on how the ADA, as amended, covers impairments related to pregnancy, even if temporary, and that employers must consider reasonable accommodations. Although the guidance mostly reiterates the state of the law, there are many areas we could discuss, from its coverage of lactating mothers to leave as an accommodation to employee benefit plan requirements. Given our limited space, however, this article will focus on only three areas that we think deserve special mention.

“Future pregnancy” pitfalls

Future pregnancy coverage includes an employee’s plan or attempt to become pregnant. The danger in this area is that the employee is not and may never become pregnant—but her announcement that she is planning to have children or is having in vitro treatments places her squarely in this protected class. If an employee makes such an announcement or, worse still, a decision maker raises the issue (“I think Jane is planning to have kids soon—can she take on this assignment?”), be careful. In this area, perception is your problem and selecting another female candidate does not end the inquiry. Remember this is about pregnancy, not just sex discrimination. Make sure decisions about a female employee’s promotions or assignments are not based on her future availability or perceived commitment and that women of childbearing age or, better still, pregnant employees, are offered opportunities.

The light duty quandary

Many employers have light duty assignments only for employees injured on the job (encouraged by their worker’s compensation carriers to get those employees back to work and off temporary total benefits). Pregnant employees are treated the same as other employees who do not have on the job injuries and are not eligible for light duty assignments. Although many courts have ruled that such a policy is not pregnancy discrimination, the guidance makes clear that the EEOC disagrees. Instead, the EEOC takes the position that a pregnant employee with restrictions must be eligible for any benefit, including light duty assignments, that are available to any other employee similar in his or her ability or inability to work. Accordingly, the EEOC believes an employer may not make a distinction based on the source of the restriction. If you have light duty available for any employees, you must make it available to pregnant employees under the same terms or risk the EEOC’s disapproval (and perhaps a lawsuit). The U.S. Supreme Court is currently considering this issue in Young v. UPS, so it is likely that we will have a definitive answer soon. (Notably, UPS has changed its light duty policy since the onset of this litigation.) However, in the meantime employers with specific light duty assignments should consider whether pregnant employees should be eligible for such assignments.

The reasonable accommodation trap

Are pregnant employees “disabled,” and must employers provide reasonable accommodations that will only last as long as the pregnancy? As an initial matter, the guidance seems to take the position that a pregnant employee with restrictions—even if there is no suggestion of an underlying disability—must be provided reasonable accommodations offered to disabled non-pregnant employees. Fortunately, this distinction is probably not significant given the ADAAA’s expansion of “impairment” to cover almost anything. The guidance makes clear that employers must reasonably accommodate temporary, pregnancy-related disabilities (e.g., gestational diabetes, swelling of the feet, depression).

Importantly, the ADA does not require an employer to remove essential functions of job as a reasonable accommodation. So, employers need to keep track of such temporary accommodations (so they do not become permanent and otherwise alter the essential functions of a position). Additionally, under the ADA, an employer who cannot reasonably accommodate a disabled employee in his or her current position must consider vacant positions in which the disability can be accommodated. In transferring an employee as an accommodation, the ADA allows an employer, if appropriate, to reduce employee’s pay commensurate with the new position’s duties and it does not have to hold open the old position. (This is different that the FMLA requirements of assigning an employee to an alternate position during intermittent leave—which we will cover in a later installment.)

It is unclear how the EEOC would view this in the context of a transfer to accommodate a temporary, pregnancy-related disability. Employers facing this situation need to make clear to the employee that the transfer to the vacancy is available but is not light duty—it is her new assignment, potentially at a new rate of pay, and when she is able to perform her old job, it may not be available.

Republished with permission. This article first appeared in Inside Counsel on March 24, 2015.