The Equal Employment Opportunity Commission (EEOC) has issued new enforcement guidance on pregnancy discrimination and related issues, despite reservations expressed by some Commissioners.  In general, the five-part guidance explains Title VII's prohibition against pregnancy discrimination, describes individuals to whom the Pregnancy Discrimination Act (PDA) applies, discusses the expanded definition of "disability" under the Americans with Disabilities Act (ADA) and how it applies to pregnancy-related impairments, and sets forth examples of best practices and reasonable accommodations.  The guidance was approved by a 3-2 vote along party lines, with Commissioners Constance Barker and Victoria Lipnic voting against it. 

Among other concerns, Commissioner Lipnic claimed the guidance – which was not presented to the public for comment beforehand – "adopts new and dramatic substantive changes to the law."  Notably, the U.S. Supreme Court will hear two cases next term that address whether agencies subject to the Administrative Procedure Act can revise their interpretive rules without first engaging in notice and comment rulemaking.   

Lipnic also criticized the release of the guidance before the Court has had a chance to rule on pregnancy accommodations in Young v. United Parcel Services, Inc. The issue in this case – which will be considered  during the Court's 2014-2015 term – is whether and to what extent an employer must provide pregnant employees with work accommodations, such as light duty, under the PDA.  According to Lipnic: 

Insofar as these issues – of central importance to the Guidance – will soon be decided by the Court, I think it is unwise of the Commission to issue guidance at this time, potentially setting forth standards and practices for employers that may well be mooted in the very near future depending on how the Court decides Young.  Moreover, the credibility of the Commission is done no favor by issuing any guidance on these points while these critical questions are pending . . . 

In addition, the guidance includes a discussion of discrimination based on the use of infertility treatments and contraception.  Lipnic claimed that the guidance's "discussion of an employer’s legal obligation under Title VII with respect to contraception has already been overtaken by events, specifically, the Court’s recent decision in Burwell v. Hobby Lobby Stores, Inc." and that the agency's position with respect to contraception must be considered in light of this case. 

Lipnic also took issue with the substantive aspects of the guidance, particularly with respect to an employer's duty to provide reasonable accommodations. Writes Lipnic: 

The Guidance takes the novel position that under the language of the PDA, a pregnant worker is, as a practical matter, entitled to “reasonable accommodation” as that term is defined by the [ADA].  No federal Court of Appeals has adopted this position; indeed, those which have addressed the question have rejected it.  Moreover, the Pregnancy Guidance states that non-pregnant workers receiving such reasonable accommodations are the appropriate comparators for purposes of PDA compliance.  This, too, is a position rejected by the majority of courts which have considered it.  These positions represent a dramatic departure from the Commission’s prior position, and perhaps more important, contravene the statutory language of the PDA.  

In addition, Lipnic claims the guidance "provides that an employer cannot lawfully deny or restrict light duty based on the source of a worker’s restriction, and requires an employer to provide light duty for a pregnant worker, even if the employer’s policy limits light duty to workers injured on the job or to employees with disabilities under the ADA."  

Notably, Lipnic alleges the guidance makes at least two legal errors: "First, it assumes that all non-pregnant workers who are 'similar in their ability or inability to work' to a pregnant worker enjoy the same workplace rights, or are a monolithic and homogenous bloc.  This is plainly not the case."  The Commissioner explained that while some pregnant employees may qualify for ADA accommodations, others are able to take needed time off under the Family and Medical Leave Act or take advantage of other employment benefits.     

Second, Lipnic states "the guidance reads out of the law the requirement that pregnant workers be treated the same, not better than, other workers for all employment purposes."  (emphasis in original) 

Lipnic similarly takes issue with the guidance's position on pregnancy-related inquiries in the workplace.  She believes that the tone of the guidance "will have the counter-productive result of making workplace accommodation of routine pregnancies more complicated for employers, and . . . less accessible and available to pregnant workers." Lipnic asserts that when a pregnant employee's superior is made aware of the pregnancy, "it is entirely appropriate to begin a conversation with the employee about her anticipated plans, schedule, work load, and assignments, so as to develop a plan to address the employee’s needs and schedule."  The guidance, however, cautions against such discussion, according to Lipnic. 

Many of the policy issues set forth in the guidance are appropriate topics for Congress to consider, not an administrative agency, Lipnic notes.  That many of these issues have been proposed via legislation is indicative that they are not current law, she contends. It remains to be seen, however, whether the guidance will be deemed an example of administrative overreach, or considered persuasive in pregnancy-related lawsuits.     

In conjunction with the guidance, the EEOC has issued a fact sheet for small businesses as well as a Q&A document explaining the law and policy changes.