EEOC Issues Enforcement Guidance on Pregnancy Discrimination

On July 14, 2014, the Equal Employment Opportunity Commission (“EEOC”) — the agency responsible for the enforcement of federal anti-discrimination laws — issued Enforcement Guidance on Pregnancy Discrimination and Related Issues (“the Guidance”). The Guidance primarily discusses the requirements of the Pregnancy Discrimination Act (PDA) and the Americans with Disabilities Act (ADA), but also addresses additional federal laws that touch upon pregnancy and related conditions, including the Family and Medical Leave Act (FMLA), the Genetic Information Nondiscrimination Act (GINA) and the Patient Protection and Affordable Care Act (ACA).

Though the basic rule of the PDA — covered employers must treat women affected by pregnancy, childbirth, or related medical conditions in the same manner as other employees who are similar in their ability or inability to work — has not changed, the Guidance asserts a number of new and somewhat controversial positions. For example:

• Lactation is a pregnancy-related medical condition under the PDA, and therefore, employers may not discriminate against a lactating employee for breastfeeding or expressing breast milk. “[I]f an employer allows employees to change their schedules or use sick leave for routine doctor’s appointments and to address non-incapacitating medical conditions, then it must allow female employees to change their schedules or use sick leave for lactation-related needs under similar circumstances.”
• Employers must provide light duty to pregnant employees if they do so for other employees. Employers may not limit light duty to employees with on-the-job injuries. In other words, employees who have lifting restrictions must be treated the same regardless of the source of their restriction — whether it be pregnancy or a fall down the office stairs.
• Employers cannot force a pregnant employee to take leave if she is able to do her job — even if the employer is motivated by concern for the employee’s safety. However, employers “must allow women with physical limitations resulting from pregnancy to take leave on the same terms and conditions as others who are similar in their ability or inability to work.” A pregnant employee cannot be fired for taking leave in accordance with her employer’s sick leave policy.
• Though pregnancy itself is not a disability under the ADA, pregnancy-related impairments may be considered disabilities. Employers may not discriminate against a worker whose pregnancy-related impairment qualifies as a disability under the ADA and must provide her reasonable accommodation if needed, unless the accommodation would constitute an undue hardship. However, under the Guidance, “[a]n impairment’s cause is not relevant in determining whether the impairment is a disability.” Therefore, routine conditions associated with most pregnancies (i.e., morning sickness and back pain) may qualify for accommodation under the ADA.
• Leave related to the “physical limitations imposed by pregnancy or childbirth,” (pregnancy-related medical leave) can be limited to women affected by those conditions, but parental leave must be extended to “similarly situated men and women on the same terms”. “If . . . an employer extends leave to new mothers beyond the period of recuperation from childbirth (e.g. to provide the mothers time to bond with and/or care for the baby), it cannot lawfully fail to provide an equivalent amount of leave to new fathers for the same purpose.”

Employer Takeaway

The Guidance is the latest example of the growing trend toward expanding protections for pregnant workers. In fact, numerous jurisdictions, including New Jersey, New York City, Alaska, California, Connecticut, Hawaii, Illinois, Louisiana, Maryland, Texas, Minnesota and West Virginia have already enacted pregnancy accommodation laws, and similar legislation is on the horizon for a number of other jurisdictions. Notably, the U.S. Supreme Court is set to hear arguments in Young v. United Parcel Service (concerning alleged “preferential treatment” for pregnant employees), and the Supreme Court’s opinion may address the Guidance. In any event, in light of the Guidance, employers should review their policies and practices related to pregnancy discrimination and accommodation. If you have questions regarding employer obligations following the EEOC’s release of the Guidance, please feel free to contact any of the attorneys in the Gibbons Employment & Labor Law Department.