On July 14th, the EEOC, over the dissent of two of its five members, issued new Enforcement Guidance that expand an employer’s duty to provide “reasonable accommodation” to pregnant workers.
It has long been the law under the Pregnancy Disability Act (PDA) that an employer cannot fire or take other adverse employment action against a woman if pregnancy, childbirth, or a related medical condition is a “motivating factor” in that employment action. While the Americans with Disabilities Act (ADA) excludes pregnancy as a disability, it has likewise been established law under the ADA Amendments Act (ADAAA) that temporary ailments related to pregnancy (e.g. high blood pressure, deep-vein thrombosis, or gestational diabetes) may qualify as “disabilities” that an employer must reasonably accommodate.
But the new EEOC guidelines break new ground: they state that just as employers are required to offer “reasonable accommodations” to employees with disabilities, they are also required to offer such accommodation to a pregnant employee, even if she is experiencing a normal pregnancy with no associated complications or disabilities.
More specifically, the EEOC guidance states that if an employer offers light duty for work-related conditions, it is required to offer light duty to any pregnant employee who needs it. While a number of courts have disagreed with the position now espoused by the EEOC, the agency’s position is that injured employees and pregnant employees who may feel limited in their ability to perform all the functions of their job are “similarly situated”. During its coming term, the U.S. Supreme Court will be reviewing a ruling of the Fourth Circuit court of appeals, concerning employers’ duty to accommodate pregnant employees under the PDA. It remains to be seen if the Supreme Court will offer some degree of deference to the newly stated views of the EEOC.
Guidance on the Guidance: Until such time as the courts may choose to rein in the new Guidance from the EEOC, employers will be well advised to adhere to the EEOC’s new interpretation, and provide reasonable accommodation, including appropriate “light duty” opportunities, to pregnant employees, even in a normal pregnancy in which there are no associated disabilities.
The new EEOC Enforcement Guidance on Pregnancy Discrimination and Related Issues can be found at: http://www.eeoc.gov/laws/guidance/pregnancy_guidance.cfm