On July 14, 2014, the United States Equal Employment Opportunity Commission (“EEOC”) issued enforcement guidance addressing protections afforded to pregnant employees under the Pregnancy Discrimination Act of 1978 (“PDA”) and the Americans with Disabilities Act (“ADA”). The enforcement guidance, which represents the EEOC’s enforcement position on various pregnancy-discrimination issues, divided the Commission 3-2, with two commissioners objecting to both the substance of the interpretation and the timing of the guidance given that the United States Supreme Court is set to decide related issues during its next term.

The enforcement guidance addresses several topics related to pregnancy discrimination, including prohibition of pregnancy-related discrimination against workers not currently pregnant (for example, discrimination based on lactation, infertility, past pregnancy, intended pregnancy, and potential to become pregnant); pregnancy-related harassment; discrimination against workers with caregiver responsibilities; and equal access to benefits for pregnant employees. It also extensively interprets the interaction of the PDA with the ADA, as amended in 2008, strongly suggesting that employers covered by Title VII and the ADA are required in many instances to provide reasonable accommodations to pregnant workers absent undue hardship to the employer’s business.

Perhaps most controversially, however, the new guidance expressly rejects employment policies limiting light-duty accommodation to employees injured on the job, contradicting established case law finding such policies to be “pregnancy-neutral” and therefore lawful under the PDA. This issue will be before the Supreme Court in its next term when the Court hears 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).

Historical Legal Framework

The PDA prohibits employment-related discrimination on the basis of pregnancy and requires that employers treat pregnant employees the same as nonpregnant workers who are “similar in their ability or inability to work.” However, normal pregnancy expressly is not a disability under the ADA, and so employers historically have not been obligated to provide reasonable accommodations for pregnant workers under that law.

Before the 2008 amendments to the ADA, courts sometimes recognized significant and serious complications of pregnancy as disabilities, if the complications were determined to substantially limit a major life activity of the pregnant employee. More often, though, even serious pregnancy complications were not deemed disabilities under the ADA due to the anticipated short duration of the limitation and the low likelihood of lasting effects following delivery of the child. Additionally, “pregnancy-neutral” employment policies limiting available accommodations based on the source of a restriction, for example on-the-job injuries, were not considered violative of the PDA.

Courts applying the pre-2008 version of the ADA, which generally did not apply to fairly short-term conditions, also often declined to treat employees with disabilities under that law as appropriate comparators to pregnant women in determining pregnancy-discrimination issues under the PDA because such employees were not “similar in their ability or inability to work” to employees experiencing the short-term effects of a normal pregnancy. 

Pregnancy Accommodation Under the ADA Amendments Act

The EEOC’s new enforcement guidance seeks to clarify employer obligations to make reasonable accommodations for pregnancy-related conditions under the ADA Amendments Act (“ADAAA”). The enactment of the ADAAA in 2008 significantly expanded the definition of disability under the ADA to include medical conditions temporary in nature and of the type sometimes associated with pregnancy.

The EEOC, while recognizing and affirming that pregnancy in and of itself is not a “disability” under the ADA, as amended, specifies in its guidance that pregnancy may cause a variety of impairments that meet the definition of disability under the ADAAA. For example, the EEOC suggests that fairly common pregnancy-related conditions such as pregnancy-related anemia, pregnancy-related sciatica, pregnancy-related swelling, gestational diabetes, and pregnancy-related depression all may qualify as disabilities requiring accommodation pursuant to the ADAAA.

Controversy

The EEOC’s enforcement guidance was met with pointed criticism from the dissenting commissioners. In a written statement, Commissioner Victoria Lipnic expressed concern that the guidance “adopts new and dramatic substantive changes to the law” in its suggestion that pregnant workers may be entitled to reasonable accommodations under the ADAAA and that disabled workers (as defined by the ADA) are appropriate comparators to pregnant employees under the PDA. She took issue with the timing of the guidance as well, commenting that the anticipated Supreme Court decision in Young v. United Parcel Services, Inc. could render the guidance moot on a number of issues. See 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).

The Supreme Court, in Young, will look at appropriate comparators for pregnant employees under the PDA, and specifically at whether an employment policy providing light duty for employees injured on the job obligates the employer to provide a similar light duty accommodation for pregnant workers. The EEOC addresses this question directly in its new guidance, stating that, “[a]n employer may not refuse to treat a pregnant worker the same as other employees who are similar in their ability or inability to work by relying on a policy that makes distinctions based on the source of an employee's limitations (e.g., a policy of providing light duty only to workers injured on the job).”

While the Supreme Court decision in Young may moot this particular aspect of the enforcement guidance, it is unlikely to contravene the Commission’s broader position that reasonable accommodation for pregnancy-related conditions may be required under the ADAAA. The facts at issue in Young occurred prior to the enactment of the ADAAA in 2008, and so the EEOC’s guidance, to the extent it relates to changes in PDA and ADA enforcement necessitated by the ADAAA, is unlikely to be addressed by the Court next term. 

Practical Implications

Despite the controversy surrounding the timing and nature of the EEOC’s guidance, employers are well-advised to consider the guidance in determining whether and how they may be required to accommodate pregnant employees. As the EEOC points out in its guidance, federal courts have already begun to analyze pregnancy-related conditions under the ADAAA framework and have determined that reasonable accommodations for pregnant women may be required as a result. Employers should individually consider any work-related restrictions brought forth by pregnant employees to determine whether the employee has a disability requiring reasonable accommodation under the ADA. At least until there is more definitive judicial clarity on the topic, employers also should consider offering light duty accommodation to pregnant employees with work restrictions if such light duty is offered to employees with job-related injuries.