The State of Pregnancy Accommodation Following New EEOC Guidance

PregnancyAccommodationOn July 14, 2014, the Equal Employment Opportunity Commission (EEOC) published new enforcement guidance on pregnancy discrimination and related issues. The EEOC’s continued focus on pregnancy discrimination is no surprise. In December 2012, the agency highlighted accommodating pregnancy-related restrictions as an emerging and developing issue in its Strategic Enforcement Plan. Moreover, the number of charges alleging pregnancy discrimination has increased significantly—from approximately 3,900 in 1997 to 5,342 in 2013.

The guidance discusses who is covered by the Pregnancy Discrimination Act (PDA), what violates the Act, the interplay between the PDA and the amended Americans with Disabilities Act (ADA), accommodations for pregnant workers, other legal requirements affecting pregnant employees, and best practices.

Reactions to the guidance are mixed. Some feel the EEOC takes an overly broad view of an employer’s obligation to accommodate pregnant employees. The EEOC guidance indicates employers must offer accommodations to pregnant workers if they offer such accommodations to other non-pregnant employees with similar work restrictions. It specifically notes that light-duty positions, which employers sometimes reserve for employees suffering from work-related injuries, should also be offered to pregnant employees. Failure to do so could be grounds for a pregnancy discrimination claim.

Others have questioned the timing of the guidance. Just two weeks prior to the guidance’s issuance, the U.S. Supreme Court agreed to review the Fourth Circuit Court of Appeals decision in Young v. United Parcel Service, Inc. (4th Cir. 2014). In Young, the Fourth Circuit held an employer did not necessarily have to offer light-duty work to pregnant workers as long as it consistently refused light-duty assignments to employees not injured on the job. It will be interesting to see whether the Supreme Court considers the EEOC guidance in reaching its decision next term.

There was even internal disagreement at the EEOC over the guidance. Three commissioners voted to approve the guidance, while two opposed it.

Despite this, employers would be wise to take pregnancy discrimination issues seriously, as the EEOC is likely to continue its aggressive approach in fighting it. In particular, employers should evaluate their accommodation procedures to ensure they apply them consistently and do not inadvertently (or purposefully) adversely impact pregnant workers. Employers should also train managers and supervisors on how to treat pregnant employees. Several of the discrimination examples cited in the guidance resulted from supervisors imposing their own stereotypes on pregnant workers, such as where a foreman forced a pregnant woman to take leave because he was worried the bending and pushing she had to do for her job would harm her unborn child, even though the employee did not have any restrictions.