On July 14, 2014, the Equal Employment Opportunity Commission (EEOC) issued its Enforcement Guidance: Pregnancy Discrimination and Related Issues (Guidance), providing its interpretation of the Pregnancy Discrimination Act (PDA) and the obligations of employers with pregnant employees. It also issued a question and answer document about the Guidance and a Fact Sheet for Small Businesses that, along with the Guidance, are available on the EEOC’s website. The EEOC issued the Guidance in response to the rising number of pregnancy discrimination complaints and a significant split of authority among federal appellate and district courts over the scope of the PDA. Indeed, the EEOC itself is divided on the issue: The Guidance was issued over the vocal dissent of two EEOC commissioners, both of whom issued public statements, which can be found here.

The Guidance advances a number of controversial positions that could greatly expand the protections afforded to pregnant employees, previously pregnant employees, and employees who have the potential to become pregnant and/or the intent to become pregnant. Much of the controversy stems from the EEOC’s contention that employers may be required to modify job requirements for pregnant and lactating employees, regardless of whether an employee has health and/or pregnancy complications or whether an employee is disabled under the Americans with Disabilities Act (ADA) or state law.

As it stands, the timing of the EEOC’s Guidance is particularly provocative, as some of the critical issues it addresses are scheduled to be reviewed by the U.S. Supreme Court in Young v. United Parcel Services, Inc., 707 F.3d 437 (4th Cir. 2013), cert. granted, 86 USLW 3602 (U.S. July 1, 2014) (No. 12-1226), during its 2014–2015 term. The Supreme Court will review “whether and in what circumstances, an employer that provides work accommodations to nonpregnant employees with work limitations must provide work accommodations to pregnant employees who are ‘similar in their ability or inability to work.’”

The EEOC’s Guidance does not have the force and effect of a law or regulation, and, ultimately, the courts will decide what the PDA requires. Both dissenting commissioners noted that issuing guidance at this juncture, which, potentially, soon could be in direct conflict with case law and therefore be invalid, appears shortsighted.

Notwithstanding the Supreme Court’s pending review of these issues, however, employers may want to consider reviewing and updating their accommodation policies in light of the EEOC’s Guidance. At a minimum, employers should be aware of the positions taken by the EEOC, the signal from the agency that it will carefully scrutinize pregnancy-related discrimination claims, and its willingness to litigate such claims.

The EEOC’s Guidance explicitly states that “[w]omen 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.” While pregnancy is not considered a disability under federal law, it is the EEOC’s position that pregnancy-related conditions—for example, back pain, an inability to stand for long periods of time, increased water intake, or lifting restrictions—will most likely be covered by the definition of “disability” under the Americans with Disabilities Act Amendments Act of 2008 (ADAAA). The ADAAA effected changes to the definition of the term disability, making it easier for individuals with pregnancy-related impairments to demonstrate that they have disabilities and are, in fact, entitled to protection under the ADA. Accordingly, the Guidance notes that covered employers are required to offer reasonable accommodations to pregnant workers with pregnancy-related conditions that may be consistent with disabilities under the ADAAA. The Guidance also challenges several federal court decisions by declaring that lactation is considered a pregnancy-related medical condition.

Notably, the EEOC’s Guidance also challenges arguably pregnancy-neutral practices that could have a disparate impact on pregnant employees. For example, policies that offer light duty accommodations only to individuals injured on the job and that would have the effect of denying such accommodations to pregnant employees constitute prima facie evidence of discrimination. According to the Guidance, showing that pregnant workers are treated worse than others who are similar in their ability or inability to work, as a matter of policy, is sufficient to establish a violation of the PDA, regardless of whether the employer bears any animus against pregnant employees.

In its Guidance, the EEOC suggests numerous best practices for employers, which include the following:

  • Employers should establish clear policies that “comply with the requirements of the PDA and ADA as amended by the ADAAA.” Employers should also train their managers to follow these policies to ensure that they are enforced uniformly and that decisions are documented. Several examples highlighted in the Guidance make clear that employers with policies that are consistently applied are more likely to be able to support a showing of nondiscrimination.
  • In considering individuals for hiring, promotions, or terminations, employers “should not ask questions about the applicant’s or employee’s pregnancy status, children, plans to start a family, or other related issues during interviews or performance reviews.” Further, before taking any adverse action against a pregnant employee, the employer should make sure it has documentation of the nondiscriminatory reasons for the decision.
  • Employers should “[d]evelop specific, job-related qualification standards for each position that reflect the duties, functions, and competencies of the position and minimize the potential for gender stereotyping and for discrimination on the basis of pregnancy, childbirth, or related medical conditions.” Once established,these standards should be consistently applied. Employers should avoid making assumptions about pregnant employees or placing sex-specific job restrictions on women with childbearing capacity.
  • Leave and accommodation policies, including light duty policies or policies that restrict leave during a probationary period, should be evaluated to determine whether they disproportionately affect pregnant workers as compared to people with similar limitations on their ability to work and, if so, whether they are necessary for business operations. Light duty offered to others must also be available to pregnant workers.
  • Employers should have a process in place for expeditiously considering reasonable accommodation requests made by employees with pregnancy-related disabilities and for granting accommodations where appropriate. Employers should also train managers to “recognize requests for reasonable accommodation, to respond promptly to all requests, and to avoid assuming that pregnancy-related impairments are not disabilities.” Where feasible, employers should temporarily reassign job duties that employees are unable to perform because of pregnancy or related medical conditions.
  • If a particular accommodation requested by an employee cannot be provided, employers should “explain why, and offer to discuss the possibility of providing an alternative accommodation.” Employers will most likely need to provide the same accommodations for pregnant workers with related medical conditions as they do for those covered by the ADA.
  • As with other types of discrimination, employers should protect employees from unlawful harassment by adopting and disseminating a strong antiharassment and antidiscrimination policy that incorporates information about pregnancy-related harassment and discrimination. Employers should periodically train employees and managers on the policy’s contents and procedures and should “incorporate into the policy and training information about harassment of breastfeeding employees.” Harassment complaints should be consistently investigated and employers should take corrective action as appropriate.

In addition to the PDA, pregnant employees and those with pregnancy-related medical conditions may have rights under the ADA (as amended by the ADAAA), the Family and Medical Leave Act, the Genetic Information Nondiscrimination Act, and/or the Affordable Care Act. Employers may want to consider the impact of the Guidance in light of the fact that their employees may be afforded rights in accordance with each of these laws, as applicable. Additionally, employers may wish to confirm that their policies comply with their obligations under state and municipal laws that may provide additional protections to pregnant employees. For example, under the Connecticut Fair Employment Practices Act, an employer is prohibited from terminating an employee because of a pregnancy and must grant a pregnant employee “a reasonable leave of absence for disability resulting from her pregnancy” and “make a reasonable effort to transfer a pregnant employee to any suitable temporary position” in the event that the employee or the employer believes that the “position held by the pregnant employee may cause injury to the employee or fetus.”