For the first time in more than 30 years, on July 14, 2014, the Equal Employment
Opportunity Commission (“EEOC”) overhauled its guidance on pregnancy
discrimination issues—broadening anti-discrimination coverage and cautioning
employers on their obligation to provide reasonable accommodations to
employees with pregnancy-related conditions. The EEOC’s Guidance takes the
position that, under multiple federal statutes, employers have broad
accommodation and non-discrimination obligations with respect to pregnant
employees, recently pregnant employees, and lactating employees. The EEOC
Guidance signals an aggressive enforcement stance by the EEOC, and it
conflicts with some federal court cases, although other federal courts have ruled
consistently with the EEOC’s position. Just two weeks prior to the issuance of the
EEOC Guidance, the U.S. Supreme Court granted a petition for certiorari in
Young v. United Parcel Service, Inc., to address whether, and in what
circumstances, the Pregnancy Discrimination Act, 42 U.S.C. § 2000e(k)
(“PDA”), which was an amendment to Title VII of the Civil Rights Act of 1964,
requires an employer that provides work accommodations to non-pregnant
employees with work limitations to provide work accommodations to pregnant
employees who are “similar in their ability or inability to work.” Until the
Supreme Court provides a definitive ruling on pregnancy non-discrimination and
accommodation obligations, employers would be prudent to act in conformance
with the EEOC Guidance.
Employment LitigationClient Alert Employment
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The EEOC’s Enforcement Guidance on Pregnancy Discrimination and Related Issues
EEOC’s position on employers’ obligations in relation to pregnancy under the PDA, the Americans with
Disabilities Act, as amended (“ADA”),
the Family and Medical Leave Act (“FMLA”), and various other laws.
According to the Guidance, pregnancy-related obligations apply to employees who currently are pregnant,
who have been pregnant in the past, who intend to become pregnant, or who merely potentially may
In defining pregnancy-related discrimination, the Guidance is clear: employers are prohibited from
considering an employee’s present, past or future pregnancy with respect to employment decisions and
should avoid pregnancy-related stereotypes and assumptions about an employee’s capabilities or job
ambitions. Even well-intentioned employer decisions aimed at protecting an employee’s pregnancy,
fertility, or fetus will “rarely, if ever, justify sex-specific job restrictions” as a “bona fide occupational job
qualification,” in the absence of evidence that the specific employee has limitations on performing the
functions of the job.
The Guidance emphasizes that numerous pregnancy-related impairments may be considered a “disability”
under the ADA and trigger employers’ reasonable accommodation duties. Notably, the EEOC now adopts
the position that, even under the PDA, employers must offer accommodations, such as light duty
assignments, to pregnant employees if the employer provides the same accommodation to non-pregnant
employees with similar work restrictions. Other accommodations employers may be required to offer
pregnant employees include modified work schedules (e.g., more frequent breaks, or later arrival times
due to pregnancy-related fatigue or morning sickness), purchasing or modifying equipment or devices
(e.g., providing a pregnant employee with a stool so she can be seated when working in a position that
would ordinarily require her to stand), or altering how a job function is performed (e.g., allowing a pregnant
employee with pregnancy-related carpal tunnel syndrome to dictate notes and have assistants input the
data, rather than requiring the pregnant employee to use a keyboard).
New Changes to EEOC’s Guidance
The new Guidance is divided into four sections addressing the PDA, the ADA, related laws such as the
FMLA, and best practices for employers. As established under the PDA, employers are prohibited from
discriminating against an employee on the basis of pregnancy, childbirth, or related medical conditions,
and they must treat pregnant employees the same as other employees who are similar in their abilities or
inabilities to work.
Now, the EEOC construes the PDA to be more closely intertwined with other federal laws—thus expanding
and complicating the scope of employers’ duties to employees with pregnancy-related conditions. Below
are highlights of the EEOC’s new Guidance:
Employees who are temporarily unable to perform the functions of their job due to pregnancyrelated conditions must be treated the same as other, non-pregnant employees with similar
abilities or inabilities to work, including providing them accommodations. If, for example, an
employer provides light duty assignments to non-pregnant employees injured on the job, comparable
light duty assignments must also be offered to pregnant employees with similar limitations on their ability
to perform work.
Both the PDA and ADA apply to private employers, as well as to state and local government employers, with 15 or more
employees.Client Alert Employment
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Pregnancy or childbirth-related conditions may qualify for accommodations under the ADA, so
long as such accommodations are reasonable and do not impose undue hardship on the
employer. Such conditions include morning sickness, lactation, and gestational diabetes. While
pregnancy itself is not a disability under the ADA, pregnancy-related impairments that substantially limit
a major life activity—even if they are only temporary and a normal condition of pregnancy—may qualify
as a disability under the ADA. Employers must also accommodate impairments of the reproductive
system that lead to physical restrictions to enable a full-term pregnancy, such as conditions that require
bed rest during pregnancy.
Pregnant employees and new parents are protected from a range of potentially-discriminatory
actions taken against them by their employers. For example, the Guidance states that employers
that provide health care insurance may not exclude prescription contraceptives in employee health plans
regardless of whether the contraceptives are provided for birth control or medical purposes, and
coverage must be provided under certain circumstances for fertility treatments for women. In addition,
any parental leave provided by employers (as distinguished from medical leave associated with
childbirth) must be provided on the same terms to similarly situated men and women.
Pregnancy Discrimination Law Landscape in 2014
With its new Guidance, the EEOC hopes to successfully combat “the persistence of overt pregnancy
discrimination, as well as the emergence of more subtle discriminatory practices.”
However, the timing of
the Guidance, which was approved by a 3-2 vote along partisan lines, has fueled concerns that the
EEOC’s credibility may soon be undermined by the U.S. Supreme Court’s anticipated ruling on pregnancy
discrimination issues in Young v. United Parcel Service, Inc.
The plaintiff in Young was denied light duty work as an accommodation for her pregnancy and was
subsequently laid off by UPS. Even after the U.S. solicitor general submitted a May 2014 brief advising the
Supreme Court that the EEOC was expected to clarify the pregnancy discrimination issues in dispute, the
Court nevertheless accepted the case for its 2014-2015 term. Depending on the decision in Young on the
extent of required pregnancy-related workplace accommodations, the EEOC may gain support for its
Guidance or need to revise it.
Also, the EEOC’s position that employers can violate Title VII by excluding coverage of prescription
contraceptives from their health insurance plans may put the EEOC at odds with Burwell v. Hobby Lobby
Stores, Inc. In the much-publicized decision, the Supreme Court recently ruled that, because the 1993
Religious Freedom Restoration Act (“RFRA”) prohibits the government from passing laws that “burden” the
free exercise of religion, closely held for-profit employers cannot be required under the Affordable Care Act
to provide contraceptive options that conflict with the employers’ sincerely held religious beliefs. In a Q&A
about the Guidance, the EEOC takes note of the Hobby Lobby decision, but declines to endorse a
religious belief exemption. Instead, the EEOC comments that its Guidance “explains Title VII’s prohibition
of pregnancy discrimination; it does not address whether certain employers might be exempt from
Title VII’s requirements under the RFRA or under the Constitution’s First Amendment.”
Even before the EEOC released its new Guidance, pregnancy discrimination issues had already been the
subject of increasing attention from state legislatures and courts. In 2014 alone, numerous state and local
governments enacted laws requiring employers to provide reasonable accommodations on the basis of
See http://www.eeoc.gov/laws/guidance/pregnancy_qa.cfmClient Alert Employment
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pregnancy or childbirth. Such laws became effective this year in Minnesota, New Jersey, and West
Virginia, as well as in New York City, Philadelphia, and Central Falls (Rhode Island). Most recently, the
Illinois legislature passed a similar law that is expected to take effect on January 1, 2015.
While the Guidance provides pregnant employees with greater protections than afforded under most
states’ laws, the Guidance mirrors, in many respects, the strong pregnancy discrimination laws already in
effect in California.
Employers in California are required to provide reasonable accommodations for
pregnant employees that may include modifying work duties, practices or policies, and providing furniture
and breaks as needed.
The EEOC’s updated Guidance also arrives on the heels of emerging case law extending antidiscrimination protections to recently-pregnant employees. In Albin v. LVMH Moet Louis Vuitton, Inc., the
Southern District of New York denied a motion to dismiss a failure-to-promote claim on the basis of a
recent pregnancy. In its July 8, 2014 opinion, the court explained that, in the Second Circuit, women who
are four months or less removed from giving birth are generally protected by Title VII’s anti-discrimination
provisions. The length of time that a new mother is protected under the law is unclear and must be decided
on a case-by-case basis by first identifying when the adverse employment action occurred. This opinion is
consistent with the EEOC’s new Guidance declaring that a “lengthy time difference between a claimant’s
pregnancy and the challenged action will not necessarily foreclose a finding of pregnancy discrimination.”
In addition, courts have held that employer actions to avoid providing accommodations to pregnant
employees are unlawful. On July 15, 2014, the Northern District of Illinois ruled in Cadenas v. Butterfield
Health Care II, Inc. that an employee’s pregnancy-related “anticipatory discharge” claim could proceed.
Here, the employer had an unwritten policy of offering light duty work only to employees with work-related
injuries. After receiving notes from the plaintiff’s doctor detailing the plaintiff’s activity restrictions while
pregnant, the employer fired the plaintiff in her 15th week of pregnancy, before her medical restrictions
were to take effect around the 20th week of her pregnancy. To avoid liability for pregnancy discrimination,
according to the Cadenas court, the employer must show that the medical restrictions would have
significantly disrupted the company’s business. In its new Guidance, the EEOC expressly prohibits such
adverse employment actions based on pregnancy or childbirth.
Best Practices for Employers under EEOC’s New Guidance
Key takeaways from the EEOC’s detailed list of “Best Practices” for employers to ensure compliance with
the new Guidance include:
Review and, where appropriate, revise policies concerning light duty, leave, benefits, accommodation,
Focus on employees’ qualifications when making employment decisions, rather than any intended,
current, or past pregnancy.
Treat a pregnant employee temporarily unable to perform the functions of her job the same way as other
employees similarly unable to perform their jobs are treated, whether by providing light duty
assignments, leave, or fringe benefits.
See generally Cal. Gov’t Code §§ 12926, 12940, 12945; 2 CCR § 11029 et seq.Client Alert Employment
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Do not assume that implementing certain changes to the employer’s normal practices or policies would
be too burdensome and therefore not required, even though there is an “undue hardship” exception to
reasonable accommodation obligations.
Avoid openly questioning a pregnant individual’s ability to perform her job. Although pregnant or fertile
women might be excluded from certain jobs if there is a bona fide occupational qualification, this
defense cannot be based on fears of danger to the employee or her fetus, fears of potential liability, or
assumptions and stereotypes about pregnant women.
Train managers and human resource staff on the protections afforded to employees under the PDA,
ADA, and other federal statutes relating to pregnancy rights.
If you have any questions about the content of this alert, please contact the Pillsbury attorney with whom
you regularly work, or the authors below.
Julia E. Judish
Teresa T. Lewi
This publication is issued periodically to keep Pillsbury Winthrop Shaw Pittman LLP clients and other interested parties
informed of current legal developments that may affect or otherwise be of interest to them. The comments contained herein
do not constitute legal opinion and should not be regarded as a substitute for legal advice.
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