New EEOC Enforcement Guidance Gives Broad Protection to Pregnant Employees

The U.S. Equal Employment Opportunity Commission recently issued new Enforcement Guidance (the Guidance) on pregnancy discrimination in the work place, shedding light on how the EEOC interprets the federal Pregnancy Discrimination Act and the Americans with Disabilities Act as it applies to pregnant workers.

The Guidance states that a worker’s right to be free from pregnancy discrimination under the PDA covers all aspects of the reproductive process, including fertility treatments, contraception use, abortion and lactation. The Guidance also takes the stance that numerous conditions related to pregnancy – albeit not pregnancy itself – may qualify as “disabilities” under the ADA. For example, impairments that “substantially limit” (as compared to most people in the general population) one’s ability to stand, sit, lift and bend, or that affect major bodily functions, may qualify as disabilities, even if they last for a short period of time.

The Guidance suggests a number of potential “reasonable accommodations” an employer should consider in such circumstances, including:

• Altering how job duties are performed
• Modifying workplace policies
• Modifying work schedules
• Granting leave in addition to that which is otherwise provided
• Temporarily reassigning an employee to a light duty position

Employers should pay particular attention to an aspect of the Guidance that could potentially clash with a pending U.S. Supreme Court case. The PDA provides that “women affected by pregnancy, childbirth, or related medical conditions must be treated the same for all employment-related purposes . . . as other persons not so affected but similar in their ability or inability to work.” Under the new Guidance, a policy that provides light duty, leave, or some other accommodation to an employee based on their limitations in a way that excludes pregnant employees, may contradict the PDA. For example, the Guidance states that a policy affording light duty work assignments to an employee injured on the job violates the PDA because a pregnant employee will not qualify, even if she is similar in her ability or inability to work as a non-pregnant employee who does qualify.

The Supreme Court, however, is currently reviewing a Fourth Circuit case which ruled differently. In that matter, the lower court held that an employer’s policy of allowing light duty work for only certain categories of employees – including those injured on the job and those who lost their DOT certification due to certain medical events – was a facially neutral policy and did not violate the PDA. Employers should stay tuned for the outcome of that case, as a Supreme Court decision upholding the Fourth Circuit would trump the conflicting part of the EEOC Guidance.

Whenever employers are faced with situations involving pregnancy and reproductive issues, they should ensure their decisions comply with the PDA and ADA.