New EEOC Enforcement Guidance on Pregnancy Discrimination

August 18, 2014 | dehs

By Sandra Hoglund Hanson

Concerned with the number of pregnancy discrimination charges filed and the discrimination revealed upon investigation, a divided U.S. Equal Employment Opportunity Commission (EEOC) issued an updated enforcement guidance on pregnancy discrimination on July 14, 2014. This guidance replaces the EEOC’s 1983 EEOC guidance on the topic. One of the more significant changes identified in the new guidance concerns the interaction between the Pregnancy Discrimination Act (PDA) and the Americans with Disabilities Ada (ADA).

According to the guidance, a facially-neutral policy or practice that limits light duty work to employees who are injured on the job and/or employees with ADA disabilities, but does not allow pregnant employees access to light duty work constitutes pregnancy discrimination. The EEOC also indicated that even though a pregnant employee may not qualify for reasonable accommodation under the ADA, the PDA may require such reasonable accommodation.

The EEOC issued this guidance with a 3-2 vote, and the 2 dissenting Commissioners issued public statements that courts may decide to not follow the guidance. There is a case currently pending before the U.S. Supreme Court regarding accommodation under the PDA,Young v. United States. In the Young case, an employee has urged the U.S. Supreme Court to consider whether an employer who provides accommodations to non-pregnant employees with work restrictions must also provide those same accommodations to pregnant employees. Careful employers should pay close attention to the Supreme Court’s future decision in theYoung case to understand their obligations to pregnant employees.

Some critics of the guidance have said the guidance overreaches employers’ true PDA obligations and creates a reasonable accommodation requirement that doesn’t otherwise exist. While employers have already been providing reasonable accommodation to pregnancy-related conditions that qualify as ADA disabilities, such as gestational diabetes, restrictions arising from “routine” pregnancies can present difficult questions regarding reasonable accommodation and what standards apply.

In addition to addressing conditions covered and accommodations required under the PDA, the guidance also gives direction in other areas, including: equal access to benefits; leave; health insurance; the Family and Medical Leave Act (FMLA), the Affordable Care Act (ACA), and other legal obligations to pregnant employees; and best practices.

If you need help understanding what obligations you may have to pregnant employees, please contact one of our employment attorneys.

Davenport, Evans, Hurwitz & Smith, LLP, located in Sioux Falls, South Dakota, is one of the State’s largest law firms. The firm’s attorneys provide business and litigation counsel to individuals and corporate clients in a variety of practice areas. For more information about Davenport Evans, visit www.DEHS.com.