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August 8, 2014

EEOC Issues New Enforcement Guidance on Pregnancy Discrimination

On July 14, 2014 the Equal Employment Opportunity Commission (“EEOC”) issued an “Enforcement Guidance on Pregnancy Discrimination and Related Issues.”  The Guidance takes an expansive view of the protections to be afforded to pregnant employees under the Pregnancy Discrimination Act of 1978 (“PDA”), Title VII of the Civil Rights Act of 1964 (“Title VII”), and Title I of the Americans with Disabilities Act (“ADA”).  The Guidance is most significant in stating  that: (1) employers may be required to provide accommodations to pregnant employees; (2) employees with disabilities under the ADA are appropriate comparators when considering requests for accommodation by employees with pregnancy-related restrictions; and (3) employers must provide light-duty assignments to pregnant employees with physical restrictions on the same terms as applied to similarly-situated employees with other medical conditions.

Although pregnancy itself is not a disability under the ADA, the EEOC has effectively declared that pregnant employees are entitled to reasonable accommodation under the PDA. Specifically, the Guidance states that an employer must treat pregnant workers who are temporarily unable to perform functions of their jobs the same way as it treats other employees unable to perform their jobs due to disabilities, “whether by providing modified tasks, alternative assignments, leave, or fringe benefits.” Employers may thus be required to provide accommodations to employees with pregnancy-related impairments that do not rise to the level of a disability under the ADA.

The Guidance also states that if employers make light duty assignments available to employees injured on-the-job and/or to employees with disabilities under the ADA, then employers must do the same for pregnant women in similar circumstances.  Similarly, pursuant to the Guidance, employers’ leave policies may not limit eligibility to those with work-related injuries or ADA protected disabilities.

The positions taken by the EEOC in the Guidance will almost certainly be challenged in the federal courts.  Indeed, the Supreme Court has granted certiorari to review Young v. United Parcel Service, Inc., 707 F.3d 437 (4th Cir. 2013), cert. granted, 81 U.S.L.W. 3602 (U.S. July 1, 2014) (No. 12-1226).  In Young, the court held that the PDA did not require that the employer accommodate a pregnant employee by offering the type of light duty assignments it provided to disabled employees and those with work-related injuries.  As the EEOC issued its Guidance after the Supreme Court granted certiorari in Young, it will be interesting to see whether, and to what extent, the Court defers to the EEOC’s position.    

The EEOC’s Enforcement Guidance on Pregnancy Discrimination and Related Issues can be found at http://www.eeoc.gov/laws/guidance/pregnancy_guidance.cfm#light.     

Take Away for Employers

While the positions articulated in the EEOC’s Guidance do not have the force of law, they are an  indication of how the EEOC will evaluate charges of pregnancy discrimination going forward, including those alleging an employer’s failure to provide reasonable accommodation.      Employers should note that certain state and local laws, including laws in New Jersey and New York City, already contain provisions that parallel many aspects of the Guidance.  To the extent employers in these jurisdictions are already in compliance with such laws, the impact of the Guidance may be lessened.

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If you have any questions regarding the Pregnancy Discrimination Act or related issues, please do not hesitate to contact us.