On July 14, 2014, the Equal Employment Opportunity Commission issued enforcement guidance on pregnancy discrimination and related issues. The purpose is to provide guidance to employers on the Pregnancy Discrimination Act (“PDA”) and the Americans with Disabilities Act (“ADA”) as they apply to pregnant employees. Pregnancy discrimination has been a hot topic for the EEOC. In its most recent Strategic Enforcement Plan, the EEOC identified pregnancy discrimination and accommodation of pregnancy-related limitations under the ADA as emerging and developing workplace issues that it will be targeting in the coming years.

Under the PDA, an employer cannot discriminate against a woman based on the woman’s pregnancy, childbirth, or related medical conditions. The PDA prohibits discrimination regarding all aspects of employment, including pay, job assignments, promotions, layoffs, training, and fringe benefits. While pregnancy itself is not an impairment or disability under the ADA, employees or applicants with pregnancy-related impairments may be covered by the ADA. Like other impairments, pregnancy-related impairments are disabilities under the ADA if they substantially limit one or more major life activities. The cause of an impairment, such as pregnancy, is not relevant in determining whether the impairment is a disability. The ADA also protects pregnant workers who are regarded as being disabled.

According to the EEOC, charges of pregnancy discrimination have increased substantially and pregnant workers continue to face inequality in the workplace. The Guidance certainly reflects the EEOC’s concern. The EEOC’s interpretation of the PDA and ADA provides strong protection to employees. Some notable aspects of the Guidance include:

• The Guidance states that the PDA applies not only to pregnant workers, but prohibits discrimination based on a past pregnancy or an employee’s potential pregnancy.
• The Guidance states that the ADA’s reasonable accommodation requirements are incorporated into the PDA. Accordingly, the Guidance requires employers to provide reasonable accommodations to pregnant employees who are restricted in their duties because of a pregnancy. The Guidance identifies several examples of reasonable accommodations including modified work schedules, extended leave, light duty assignments, and modification of workplace policies.
• The Guidance requires equal parental leave for both mothers and fathers.
• In contrast to the Supreme Court’s ruling in Burwell v. Hobby Lobby, the Guidance states that, under the PDA, employers who “have health insurance benefit plans” must “cover prescription contraceptives on the same basis as [other] prescription drugs, devices, and services.”
• The Guidance also outlines pregnant workers’ rights under the Family Medical Leave Act and the Affordable Care Act’s requirement that employers provide reasonable break-time and a private (non-bathroom) room for nursing mothers.

The timing of the Guidance has raised eyebrows among some employment lawyers and commentators. On July 1, 2014, the Supreme Court decided to review a case (Young v. United Parcel Service) to determine whether the PDA requires an employer to provide accommodations to non-pregnant employees with work limitations who are “similar in their ability or inability to work.” This is one of the same issues addressed by the Guidance. Accordingly, the Supreme Court’s decision in Young could render substantial portions of the guidance moot.

There are a number of important takeaways from the Guidance. First and foremost, employers should ensure that they do not discriminate against female employees on the basis of the employee’s pregnancy, childbirth, or related medical conditions. Employers should also review their leave policies to ensure they comply with the new Guidance. Employers should treat pregnant and non-pregnant employees with similar limitations or work abilities equally. Employers should also train supervisors and managers to spot potential accommodation requests regarding pregnancy-related impairments.

The EEOC’s Guidance can be found here, while Questions and Answers about the Guidance can be found here. Additionally, the EEOC has provided a Fact Sheet for Small Businesses regarding pregnancy discrimination. We will keep you updated on the Supreme Court’s decision in Young and any other related lawsuits.

By Kenneth T. Short, kshort@dsda.com