In a controversial move, the EEOC yesterday issued Enforcement Guidance on Pregnancy Discrimination and Related Issues, along with a “Q&A” document about the guidance and a Fact Sheet for Small Businesses.  Two Commissioners, Constance S. Barker and Victoria A. Lipnic, filed statements expressing their dissent from the Commission’s adoption of the Guidance. Both noted that the substance of the Guidance overstepped existing legal precedents and was a dramatic departure from existing law and EEOC Guidance on the Pregnancy Disability Act (PDA). Both criticized the agency for not making the Guidance available for public review and comment before it was brought to the Commissioners for a vote, noting that the move signaled a lack of transparency.

The Guidance is the first comprehensive update of the EEOC’s position on discrimination against pregnant workers since  1983.  This Guidance supersedes the earlier guidance and addresses the application to pregnant employees of laws passed in the past 30 years, such as  the Americans with Disabilities Act (ADA) in 1990, the Family and Medical Leave Act (FMLA) in 1993 and the ADA Amendments Act (ADAAA) in 2008.

The Guidance has four parts: Part One discusses the prohibitions of the PDA; Part Two discusses the application of the ADAAA’s accommodation and non-discrimination requirements and the definition of disability to pregnancy-related impairments; Part Three discusses other legal requirements affecting pregnant workers, including the FMLA; and Part Four describes “Best Practices” for employers. The more controversial provisions include the EEOC’s position that (1) an employer policy of providing light duty only to employees with on the job injuries violates the PDA (a position which dissenting Commissioner Lipnic noted has not been adopted by any federal circuit court); (2) an employer health insurance plan must cover prescription contraceptives on the same basis as prescription medications that prevent medical conditions other than pregnancy; (3) an employer must provide accommodations to an employee with a normal and otherwise healthy pregnancy; and (4) certain employer related inquiries related to employer comments or discussions regarding an employee’s pregnancy or potential pregnancy are indicative of discrimination.

In Part Four, the Guidance provides a litany  of “Best Practices” which the EEOC concedes “go beyond federal non-discrimination requirements,” but are suggestions to potentially “decrease complaints of unlawful discrimination and enhance employee productivity.”   These suggestions include implementing a strong policy against pregnancy discrimination, training managers, responding to complaints promptly and effectively, evaluating restrictive leave policies for any disproportionate impact on pregnant workers, consulting with pregnant workers to develop a plan for covering job duties during anticipated absences, and explicitly stating that reasonable accommodation procedures are available to employees with pregnancy-related impairments. As the dissenters noted, much of the Guidance seems to impose requirements on employers that are not supported by the language of the PDA and/or the ADAAA, and, in some cases, contradict court decisions.

Employers should review their pregnancy, discrimination, leave and disability accommodation-related policies and practices in light of the Guidance. Stay tuned. More to come on this controversial Guidance.

Virginia Mixon Swindell and Kristin Bauer