EEOC Issues New Guidance on Pregnancy

The Equal Employment Opportunity Commission (EEOC) recently issued comprehensive "Enforcement Guidance on Pregnancy Discrimination and Related Issues” (the Guidance). Along with the Guidance, the EEOC issued a Q&A document as well as a Fact Sheet for Small Businesses. This is the first update of the EEOC’s guidance on pregnant workers since the 1983 publication of its Compliance Manual.  

The newly released Guidance covers developments in the law over the last thirty years, including the Pregnancy Discrimination Act (PDA), which amended Title VII, and the 2008 Amendments to the Americans with Disabilities Act (ADA). The Guidance further demonstrates the EEOC’s priority focus on pregnancy.  

The EEOC adopted the new Guidance by a split 3-2 vote. Some dissenters feel that the Supreme Court and/or Congress may, in the very near future, moot the standards and practices set up by the new Guidance in pending causes and proposed legislation. 

The Guidance is divided into four parts. Part one discusses the prohibitions against discrimination under Title VII, as clarified by the PDA. Part two discusses the ADA’s pregnancy accommodation and non-discrimination requirements, in light of the expanded definition of disability under the ADA Amendments. Part three discusses other requirements affecting pregnant workers, including the Family and Medical Leave Act (FMLA). Part four includes “Best Practices” for employers.

Key Provisions Include:

• The EEOC believes that employers should provide a reasonable accommodation to pregnant employees if the employer would offer accommodations to any other non-pregnant employees.  

• An employer policy providing light duty assignments only to employees with on-the-job injuries, and not for pregnancy related issues, would violate the PDA according to the EEOC.
• An employer health insurance plan should treat prescription contraceptives the same as prescriptions and treatments intended to prevent conditions other than pregnancy. Further, the Guidance states that under the PDA, in order to avoid a potential disparate impact violation of Title VII, employers who have health insurance benefit plans should treat pregnancy-related costs the same as medical costs unrelated to pregnancy.
• The Guidance provides that the PDA covers not only discrimination based on a current pregnancy, but also discrimination based on a past pregnancy or the potential to become pregnant in the future. An employer may not discriminate, even if the employer believes its actions are in the employee’s best interest. By way of example, the Guidance states that an employer may not exclude a woman from a job in which she must handle certain chemicals because the employer believes (without medical evidence) the chemicals could harm a developing fetus.
• The Guidance also identifies lactation as a “pregnancy-related medical condition.” Employers must permit a lactating employee the “same freedom to address . . . lactation-related needs that she and her co-workers would have to address other similarly limiting medical conditions.” 
• The Guidance includes a list of suggested “best practices” for employers to reduce the chance of pregnancy-related PDA and ADA violations. However, it specifically notes that these practices “may go beyond federal non-discrimination requirements.”  

What Should an Employer Do?

Employers should review their practices and policies in light of the EEOC’s positions expressed in the Guidance. Additionally, employers should be aware that state law requirements may provide additional protections for pregnant workers. Although the Guidance could be affected by upcoming US Supreme Court rulings or Congressional action, its issuance further emphasizes the EEOC’s priority attention to pregnancy issues.

This is a brief summary only, and employers should seek legal advice regarding their policies and procedures that may be covered by the EEOC’s new Guidance. Smith Anderson’s Employment & Labor lawyers are available for assistance. 

Note:  Special thanks to Heather Warwick, Staff Attorney, for assistance with this article.