Pregnancy discrimination: The EEOC issues new guidance

New guidance for dealing with pregnant employees has been issued by the EEOC.
New guidance for dealing with pregnant employees has been issued by the EEOC.

On July 14th, 2014 the EEOC issued new guidance to dealing with pregnancy under Title VII. Originally addressed under the Pregnancy Discrimination Act of 1978, how to deal with pregnant women has been a big issue for employers for a long time, especially for smaller employers. According to Seyfarth Shaw this guidance ties pregnancy and disability in a novel way.

Novel tie to disability

According to attorneys Paul Kehoe and Tracy M. Billows of Seyfarth Shaw, this novel approach means “…all pregnant workers are, as a practical matter, entitled to a ‘reasonable accommodation’ as the term is understood under the Americans with Disabilities Act (ADA), as amended.” The Fact Sheet explaining this new guidance says “Although pregnancy itself is not a disability, pregnant workers may have impairments related to their pregnancies that qualify as disabilities under the ADA. Amendments to the ADA made in 2008 make it much easier than it used to be to show that an impairment is a disability. A number of pregnancy-related impairments are likely to be disabilities, even though they are temporary, such as pregnancy-related carpal tunnel syndrome, gestational diabetes, pregnancy-related sciatica, and preeclampsia.” So the ability to more easily prove a disability weighs into this guidance.

Light duty as second novel issue

A second area that is a new approach to pregnancy discrimination deals with light duty. As Kehoe and Billows say “an employer cannot restrict light duty positions based on the source of the individual’s restriction, for example, on-the-job injuries or covered disabilities under the ADA.” The Fact Sheet says “An employer may not limit a pregnant worker’s access to light duty based on the source of her impairment (e.g., it may not deny light duty to a pregnant worker based on a policy that limits light duty to employees with on-the-job injuries).” It does allow that if the employer restricts light duty as to the type and duration it can do so for pregnant employees as long as it has done so in the same manner with other employees who are not pregnant.
The new guidance emphasizes that pregnant employees must be treated as any other employee would be treated for purposes of leave. This guidance means an employer:

  • May not single out an employee’s pregnancy-related condition for medical clearance procedures that are not required of employees who are similar in their ability or inability to work,
  • May not remove a pregnant employee from her job because of pregnancy as long as she is able to perform her job, and
  • Must allow her to return to work following recovery from a pregnancy-related condition to the same extent that employees on sick and disability leave for other reasons are allowed to return.

The Enforcement Guidance spells out the terms of the new enforcement guidelines in much more detail.
According to Kehoe and Billows  “As a practical matter, employers will feel the greatest impact of the Guidance in the area of light duty and leave as applicable to female workers with ‘normal’ pregnancies.”

Future of this enforcement

Kehoe and Billows point out that this enforcement does not have the force of laws. However, these are the guidelines that the EEOC will be using in their enforcement efforts in the near future. Whether these guidelines will stand will depend on the Supreme Court of the US in the next term when they look at the case of Young v. UPS. However, this could also be addressed by enacted legislation and currently is proposed in both the Senate and House of Representatives as the Pregnant Worker’s Fairness Act.

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