In Enforcement Guidance issued last week, the Equal Employment Opportunity Commission took the position that employers should accommodate the physical restrictions of women with normal, uncomplicated pregnancies as if those women had protected disabilities.

The EEOC issued this Guidance despite learning 13 days earlier that the United States Supreme Court plans to address this legal issue in its next term.  Three of the five Commissioners chose to plow ahead; the two dissenters wanted to wait to avoid the possibility of the Supreme Court scuttling the Guidance.

The Guidance applies to the Pregnancy Discrimination Act (“PDA”), an amendment to Title VII of the Civil Rights Act.  The PDA specifies that pregnancy discrimination in employment is an illegal form of sex discrimination.

Sometimes, difficult pregnancies cause physical conditions within female employees that may rise to the level of a disability under the Americans with Disabilities Act (“ADA”).  In those cases, employers often must provide reasonable accommodations to the employees unless the accommodations would cause undue hardships to the employers. 

The controversial question addressed by the Guidance concerns normal pregnancies that do not have complications which reach the threshold of an ADA “disability.”  It’s not unnatural in any pregnancy for an employee to reach a stage where she has a 20-pound lifting restriction or the need for an occasional sit-down break.  Must an employer accommodate those restrictions under the PDA?

The EEOC Guidance says “yes,” if the employer provides that accommodation to non-pregnant employees.  In the large majority of situations, the employer will have provided (or normally would provide) the accommodation to some non-pregnant employees – notably, those employees with an actual disability the employer is required to accommodate under the ADA.

The Commission’s Guidance states:  “[A]n employer is obligated to treat a pregnant employee temporarily unable to perform the functions of her job the same as it treats other employees similarly unable to perform their jobs, whether by providing modified tasks, alternative assignments, or fringe benefits.”  Evidence establishing unequal, illegal treatment includes the fact that “reasonable accommodations . . . are provided under the ADA to individuals with disabilities who are similar to a pregnant worker in terms of their ability or inability to do work.”

This contradicts the holding of an opinion issued last year by the Court of Appeals for the Fourth Circuit, covering five Mid-Atlantic states.  The case is Young v. United Parcel Service, Inc., the same case the Supreme Court agreed on July 1 to hear during its next term.

In Young, UPS denied Young’s request for a light-duty position to accommodate a lifting restriction caused by her pregnancy.  In her PDA claim, Young alleged discrimination because UPS had a policy of providing such light duty to those with ADA disabilities (and those who had suffered on-the-job injuries).  The court labeled UPS’s policy “pregnancy-blind” and concluded that forcing UPS to accommodate Young would grant her preferential treatment over non-pregnant workers who were denied an accommodation under the policy because their injury-induced restrictions did not rise to the level of an ADA disability.  The court rejected Young’s invitation to “transform an antidiscrimination statute into a requirement to provide accommodation to pregnant employees, perhaps even at the expense of other, nonpregnant employees.”

The Supreme Court ultimately will decide who is right.  In the meantime, employers can expect the EEOC to attempt to enforce the PDA against those who do not reasonably accommodate the restrictions of pregnant workers.  Employers should tread carefully and seek legal assistance, at least until the Supreme Court rules.

Employers also should note that a few states already have enacted laws consistent with the EEOC Guidance.  For example, New Jersey this year enacted the Pregnant Worker’s Fairness Act, which essentially equates the physical restrictions resulting from an uncomplicated pregnancy to a protected disability.