On July 14, 2014 the EEOC issued updated enforcement guidance on pregnancy discrimination and related issues under the Pregnancy Discrimination Act (PDA). In 1978, Congress passed the PDA, which amended the definition of discrimination on the basis of sex in Title VII of the Civil Rights Act of 1964 to provide that it included discrimination in employment “because of or on the basis of pregnancy, childbirth, or related medical conditions.” 42 U.S.C. § 2000e(k). This is the first comprehensive update of the EEOC’s guidance on this subject since 1983.

The guidance just released discusses the EEOC’s findings on:

  • Light duty policies as applied to pregnant workers
  • How the PDA covers not only current pregnancy, but discrimination based on past pregnancy and a woman’s potential to become pregnant
  • Lactation as a covered pregnancy-related medical condition
  • How the PDA prohibits requiring pregnant workers who are able to do their jobs to take leave
  • How parental leave should be provided to similarly situated men and women on the same terms
  • How employers might have to provide reasonable accommodations for workers with pregnancy-related impairments under the ADA and the types of accommodations that might be necessary

Of particular note is the EEOC’s guidance on light duty policies to be applied to pregnant workers, which states:

  • Light Duty Policies. An employer has to provide light duty, alternative assignments, disability leave or unpaid leave to pregnant workers if it does so for other employees who are similar in their ability or inability to work.
    • An employer may not limit a pregnant worker’s access to light duty based on the source of her impairment (e.g., it may not deny light duty to a pregnant worker based on a policy that limits light duty to employees with on-the-job injuries).
    • However, if an employer’s light duty policy restricts the number of light duty positions or the duration of light duty assignments, the employer may lawfully apply those restrictions to pregnant workers, as long as it also applies the same restrictions to other workers similar in their ability or inability to work.

The new EEOC guidance on light duty policies for pregnant workers under the PDA comes just after the U.S. Supreme Court’s July 1 decision to accept an ex-worker’s appeal of a 4th Circuit decision holding that the PDA does not require preferential treatment for pregnant workers. Young v. UPS, 707 F.3d 437 (4th Cir. 2013), certiorari granted by Supreme Court Case No. 12-1226 (U.S., July 1, 2014). In that case, the 4th Circuit held that UPS’s policy to limit accommodations to those employees injured on the job, and disabled as defined under the ADA, is a pregnancy-blind policy and lawful. While the EEOC opposed the Supreme Court’s decision to accept Young’s appeal of the 4th Circuit’s decision, just 14 days after the Supreme Court’s decision, the EEOC promulgated guidance that supports the appeal.

Employers should be mindful of the EEOC’s guidance on light duty policies for pregnant workers, but also aware that a number of federal courts, including the 4th Circuit, disagree with the EEOC’s guidance on this subject. Ultimately, it is expected that the Supreme Court will resolve this issue when it rules on the pending appeal of Young v. UPS.