FAQs about the EEOC’s new pregnancy guidance

workplace pregnancy discrimination

The Equal Employment Opportunity Commission (EEOC) issued new enforcement guidance on pregnancy discrimination in July 2014, warning employers of their obligation to provide pregnant employees reasonable accommodations in the workplace and giving employers insight into how the EEOC will enforce future pregnancy-related issues under the Pregnancy Discrimination Act (PDA).

As expected, the guidance confirms that the EEOC will broadly interpret when pregnancy-related conditions will be considered disabilities under the Americans with Disabilities Act (ADA). Also, for the first time, the EEOC takes the position that the PDA requires employers to offer temporary light-duty assignments to pregnant employees with work restrictions if the employer provides the same accommodation to non-pregnant employees who have similar work restrictions.

In light of the broad expansion of covered disabilities under the ADA Amendments Act, a number of pregnancy-related impairments arguably will be considered disabilities (e.g., gestational diabetes or preeclampsia), thereby making the employee eligible to obtain a reasonable accommodation under the ADA similar to any other individual with a disability. The EEOC’s guidance, however, takes this even further, requiring reasonable accommodations for pregnant employees even if her impairments do not rise to the level of a disability under the ADA. The guidance seems to boil down to this critical provision:

By enacting the PDA, Congress sought to make clear that ‘pregnant women who are able to work must be permitted to work on the same conditions as other employees; and when they are not able to work for medical reasons, they must be accorded the same rights, leave privileges and other benefits, as other workers who are disabled from working.’ The PDA requires that pregnant employees be treated the same as non-pregnant employees who are similar in their ability or inability to work.1

You may have some questions about this guidance. Here are some common questions I’ve been hearing:

Why has the EEOC issued this guidance?
This guidance was last updated in 1983. However, the EEOC recently has identified pregnancy discrimination claims as a priority in its enforcement efforts. In announcing the updated guidance, EEOC Chair Jacqueline A. Berrien affirmed that the EEOC continues to process a significant number of charges alleging pregnancy discrimination, and stated that the EEOC’s investigations have purportedly “revealed the persistence of overt pregnancy discrimination, as well as the emergence of more subtle discriminatory practices.”2

What are some of the key provisions in the guidance?
The updated guidance provides the EEOC’s position on a number of key issues that substantially impact employers, including:

  • The fact that the PDA not only covers current pregnancy, but discrimination based on past pregnancies and a woman’s potential to become pregnant;
  • Lactation as a covered pregnancy-related medical condition under the ADA;
  • The circumstances under which employers may have to provide light-duty accommodations for pregnant workers;
  • Issues related to leave for pregnancy and for medical conditions related to pregnancy;
  • The PDA’s prohibition against requiring pregnant workers who are able to do their jobs to take leave;
  • The requirement that parental leave (which is distinct from medical leave associated with childbearing or recovering from childbirth) be provided to similarly situated male and female employees on the same terms;
  • The circumstances under which employers may have a duty to provide reasonable accommodations for workers with pregnancy-related impairments under the ADA and the specific types of accommodations that may be necessary; and
  • Best practices for employers to avoid unlawful discrimination against pregnant workers.

In addition to its enforcement guidance, the EEOC also published a question and answer document about the updated guidance and an employer fact sheet.

What about fathers?
Despite its attention to pregnant employees in the guidance, the EEOC warned employers to avoid treating men and women differently when it comes to parental leave (i.e., leave for purposes of bonding with a child and/or providing care for a child). The EEOC summed it up this way:

Leave related to pregnancy, childbirth, or related medical conditions can be limited to women affected by those conditions. However, parental leave must be provided to similarly situated men and women on the same terms. If, for example, 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.1

Insights for employers
The EEOC’s guidance is groundbreaking, and its impact will affect the manner in which employers provide accommodations to their employees. Clearly, the impact of the guidance is felt most by employers in its requirement that they now are required to provide reasonable accommodations (including light-duty accommodations and leaves of absence) for all pregnant employees, regardless of whether they are defined as disabled under the ADA.

Due to the EEOC’s continued scrutiny and enforcement focus on pregnancy discrimination and the agency’s broad interpretation of employers’ obligations under federal law, employers are well-advised to review their accommodation policies and practices as soon as possible to minimize exposure to pregnancy discrimination claims.

This post is excerpted from the original post on FMLA Insights and is reprinted with permission from Jeff Nowak.

About guest blogger Jeff Nowak
Jeff Nowak serves as co-chair of the labor and employment practice group at Chicago-based law firm Franczek Radelet, and he also serves as author of the FMLA Insights blog (www.fmlainsights.com). Jeff represents private and public sector management clients in all areas of labor and employment law. He has extensive experience dealing with the Family and Medical Leave Act (FMLA) and the Americans with Disabilities Act (ADA), including counseling clients on compliance with FMLA regulations, conducting FMLA audits and training, and successfully litigating FMLA and ADA lawsuits. Jeff frequently speaks on a wide range of employment topics, and recently presented with The Standard at the annual conference of the College and University Professional Association for Human Resources (CUPA-HR). He can be reached at jsn@franczek.com.

1Enforcement Guidance: Pregnancy Discrimination and Related Issues. U.S. Equal Employment Opportunity Commission website. http://www.eeoc.gov/laws/guidance/pregnancy_guidance.cfm#over. Published July 14, 2014. Accessed November 11, 2014.

2EEOC Issues Updated Enforcement Guidance On Pregnancy Discrimination And Related Issues [news release]. Washington, D.C.: U.S. Equal Employment Opportunity Commission; July 14, 2014. http://www1.eeoc.gov/eeoc/newsroom/release/7-14-14.cfm. Accessed November 11, 2014.

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