What you need to know:

The Equal Employment Opportunity Commission recently issued Guidance relating to pregnancy in the workforce.  The Guidance contains significant changes in the interpretation of laws affecting pregnant workers, including the Pregnancy Discrimination Act and the American with Disabilities Act.  Among these changes is a requirement that employers provide reasonable accommodations for workers with pregnancy-related impairments.

What you need to do:

Although the EEOC’s Pregnancy Guidance does not have the force of law, employers should consider the Guidance carefully before taking adverse action against employees with pregnancy-related impairments.  Employers should also review written employment policies, and revisit unwritten practices and procedures, to ensure that they do not impose impermissibly harsh or disparate treatment on employees with pregnancy-related impairments.

Overview of EEOC Guidance

The Pregnancy Guidance is the first update of the EEOC’s guidance on pregnancy-related discrimination since 1983.  Much of the Guidance simply confirms existing law and is relatively uncontroversial.  For example, the Guidance makes clear that:

  • Employers are prohibited from discriminating against a female employee because she might become or intends to become pregnant.
  • Employers should not make inquiries into whether an applicant or employee intends to become pregnant.  This includes questions about an applicant’s or employee’s pregnancy status, children, family plans, or other related issues during interviews or performance reviews.
  • Employers are prohibited from requiring any female employee to take leave because she is pregnant as long as she is able to perform her job.

However, the Guidance also contains a key provision that has drawn sharp criticism.  Specifically, the Guidance states that if an employer provides an accommodation to an employee with disability-related limitations, it must provide the same accommodations to a pregnant employee who has similar limitations regardless of whether the employee is disabled for ADA purposes.

Among other things, this part of the Guidance directly contradicts the recent decision of a federal appeals court in Young v. United Parcel Service.  The plaintiff in Young was a pregnant UPS driver who requested light duty after her doctor advised her not to lift more than 10 to 20 pounds during pregnancy.  UPS only offers light duty to employees with on-the-job injuries and those who are disabled under the ADA.  The court in Youngrejected the employee’s claim that she was entitled to the same accommodations.  The Supreme Court has now agreed to review this ruling in its next term. 

In light of Young and the pending Supreme Court review, many have criticized the timing of the EEOC’s Guidance, including two of the five EEOC’s Commissioners.  Both Commissioners also argue that the Guidance departs from current law and believe that the Guidance should have been subject to public comment before being issued. 

Importantly, the Guidance also reiterates the EEOC’s position concerning parental leave policies.  This requires that employers who provide female employees with parental leave (as distinguished from pregnancy leave) must offer parental leave on the same terms to their male employees.  Accordingly, in the EEOC’s view, employers who provide paid leave to mothers for the period following the completion of their recovery from childbirth must offer equivalent paid leave to new fathers.

What the Pregnancy Guidance Means for Employers

It is important to note that, although the Guidance does not have the force of law, it now establishes the standard under which the EEOC will conduct investigations and pursue charges.  In addition, while courts are not required to follow the Guidance, they will certainly consider it in interpreting the pregnancy discrimination laws. 

The key question will be whether the Supreme Court accepts or rejects the EEOC’s position when it decides the Young case in its fall 2014 term.  If it accepts, employees with pregnancy-related limitations will have the same right to accommodations as employees who are disabled under the ADA.