Why it matters: In the first new guidance on the Pregnancy Discrimination Act (PDA) in more than 30 years, the Equal Employment Opportunity Commission (EEOC) released the “Enforcement Guidance on Pregnancy Discrimination and Related Issues.” Issued in a split vote by the Commission, the guidance covers the general prohibitions and requirements for employers under the PDA, emphasizing the requirement that pregnant employees be treated in the same manner as other employees in terms of alternative assignments and modified tasks. The EEOC also discussed the intersection of the PDA with other statutes, including the Americans with Disabilities Act (ADA), the Family and Medical Leave Act (FMLA), and Title VII. For employers, a key part of the document can be found at the end, when the agency concluded with a list of best practices regarding pregnant employees. Despite the importance of the guidance, employers should be aware that it may not be as impactful as the agency hopes. Two commissioners voted to disapprove the guidance, expressing concern that it was issued without public comment and presents a new legal interpretation of the PDA unsupported by case law or congressional intent. And the document may be on a collision course with a case before the U.S. Supreme Court set to be argued next term. In Young v. UPS, the justices have agreed to hear the issue of whether – and in what circumstances – an employer that provides work accommodations to nonpregnant employees with work limitations must provide work accommodations to similarly situated pregnant employees.

Detailed Discussion

In 1983 the EEOC added a chapter to its Compliance Manual on the Pregnancy Discrimination Act. Now, more than 30 years later, the agency has updated the guidance in a somewhat controversial new document.

In addition to the guidance, the EEOC released a Q&A document and a Fact Sheet for Small Businesses.

The guidance cautions employers that the PDA covers discrimination beyond an employee’s current pregnancy to include any differential treatment based on an employee’s fertility or childbearing capacity, such as a past pregnancy, the use of contraception, or a woman’s potential to become pregnant. Lactation is also covered as a pregnancy-related medical condition, as are back pain, preeclampsia, and the aftereffects of a delivery.

Can an employer ask whether an applicant is pregnant? Title VII does not prohibit the inquiry but generally discourages questioning about gender-related characteristics, the EEOC said. And the agency will consider the question when evaluating a charge of pregnancy discrimination.

Caregiving responsibilities were also addressed in the guidance. By reassigning a female employee upon her return from maternity leave, assuming that a new mother will be less committed to her job, the employer would violate Title VII’s prohibition on discrimination based on sex, the EEOC said. Alternatively, if an employer offers parental leave, it must be provided to male and female employees on the same terms, the agency added.

While some circumstances exist under which employers have to provide light duty or other accommodations for pregnant workers, the EEOC noted that the statute prohibits employers from requiring pregnant workers who are able to do their jobs to take leave. Employers may require that a pregnant worker be able to perform the duties of her job, but adverse actions based on assumptions or stereotypes are prohibited, the agency said – such as reassigning a pregnant employee to a job with fewer deadlines to decrease her stress.

As for the ADA, the agency explained that pregnancy itself is not an impairment, but pregnancy-related impairments may be protected under the statute and reasonable accommodations required for pregnancy-related impairments. The EEOC provided examples of pregnancy-related impairments that might substantially limit major life activities, such as gestational diabetes or a woman who suffered from a disorder of the uterus that necessitated certain physical restrictions to enable a full-term pregnancy.

Reasonable accommodations suggested by the agency ranged from light duty or allowing a pregnant worker on bed rest to telework to modifying workplace policies or schedules (allowing an employee to start later because of morning sickness) or purchasing equipment for a pregnant worker, such as a stool to sit on for a job task typically performed while standing.

The EEOC concluded the new guidance by offering best practices for employers under the PDA. Tips included developing and enforcing a policy based on the requirements of the statute, conducting employee training, reviewing any light-duty policies, establishing a process for “expeditiously” considering reasonable accommodation requests related to pregnancy, and when rejecting a request, offering an explanation as to why and offering to discuss alternatives.

To read the EEOC’s new guidance, click here

To read the Q&A document, click here

To read the Fact Sheet, click here