On July 14, 2014, the Equal Employment Opportunity Commission (“EEOC”) issued updated guidance on pregnancy discrimination and related issues, by examining the Pregnancy Discrimination Act (“PDA”), which requires that employers treat pregnant employees the same as similarly situated non-pregnant employees with similar short-term disabling conditions. While guidance does not have the force of law or regulations, it shows the EEOC’s view on the issues raised and shows how the EEOC plans to address such issues.

The guidance, available at www.eeoc.gov/laws/guidance/pregnancy_guidance.cfm, marks a change from earlier EEOC guidance in this area. Among the major changes:

1. Reasonable Accommodations. Employers may be required to make reasonable accommodations for pregnant employees. Neither the PDA nor the Americans with Disabilities Act (“ADA”) require that employers make reasonable accommodations for pregnant employees who do not have any disabilities. The ADA’s 2008 amendments broadened the individuals who may be considered disabled to include some relatively short-term impairments. The EEOC now takes the position that, if reasonable accommodations are made pursuant to the ADA for nonpregnant employees with short-term disabilities, reasonable accommodations also must be made for pregnant employees. The EEOC has taken this position while acknowledging case law to the contrary, such as Young v. United Parcel Serv., Inc., 707 F.3d 437 (4th Cir. 2013), cert. granted, 81 U.S.L.W. 3602 (U.S. July 1, 2014). The Young case will be decided ultimately by the United States Supreme Court.
2. Light-Duty Programs. If employers have a light-duty program only for employees injured on the job, they must offer light duty to pregnant employees, if needed. This represents a major change. Many employees have light-duty programs open only to employees injured on the job, to try to save on worker’s compensation costs. The EEOC acknowledges that several cases, including the Young case, have held that pregnant women are not entitled to reasonable accommodations under policies intended specifically for employees injured on the job. Nevertheless, the EEOC will consider the failure to provide light duty under these circumstances to be a violation of the PDA.

Other issues of interest covered in the guidance include:

1. Time Frame for PDA Claims. The EEOC makes clear in this guidance that actions that take place after the employee has given birth may still give rise to a claim under the PDA. The guidance states: “The language of the PDA does not restrict claims to those based on current pregnancy.” Therefore, if an employer takes action based on a past pregnancy, there may be liability under the PDA.
2. Parental Leave. The guidance addresses parental leave, that is, a leave provided for bonding purposes in addition to any leave provided to a woman for her physical limitations due to pregnancy and childbirth. The guidance holds that, if such leave is provided to women as part of a pregnancy leave, but is not provided for fathers, it violates Title VII of the Civil Rights Act of 1964, as amended (“Title VII”).
3. Harassment. The guidance notes that the PDA prohibits harassment based on pregnancy, childbirth, or related medical conditions. Harassment could include unwelcome jokes, name calling, offensive pictures, and “interference with work performance motivated by pregnancy, childbirth, or related medical conditions such as breastfeeding.”
4. Other Laws. The guidance notes that other laws may provide protections for pregnant workers as well. These laws include the Family and Medical Leave Act; Executive Order 13152, which prohibits discrimination in federal employment based on the employee’s status as a parent; Section 4207 of the Patient Protection and Affordable Care Act, which generally requires employers to provide reasonable break time and a private area for breastfeeding employees to express breast milk for up to one year from the birth of the child; and state laws, such as the Pennsylvania Human Relations Act.

The above is an overview of some of the provisions of the new guidance. The guidance covers other issues as well.

What Does This Mean for You? Employers will need to be even more careful than ever in handling matters concerning pregnant employees.

If you have any questions about the EEOC’s guidance or any other employment or labor law matters, please contact S. Whitney Rahman at swr@blakingerthomas.com.

This update is provided for informational purposes only and should not be
construed as legal advice or as creating an attorney-client relationship
where one does not already exist.