New EEOC Developments Expand Employers’ Pregnancy Accommodation Obligations

The EEOC’s Enforcement Guidance on Pregnancy Discrimination and Related Issues ¹ explains the EEOC’s position on employers’ obligations in relation to pregnancy under the PDA, the Americans with Disabilities Act, as amended (“ADA”),² the Family and Medical Leave Act (“FMLA”), and various other laws. According to the Guidance, pregnancy-related obligations apply to employees who currently are pregnant, who have been pregnant in the past, who intend to become pregnant, or who merely potentially may become pregnant.

In defining pregnancy-related discrimination, the Guidance is clear: employers are prohibited from considering an employee’s present, past or future pregnancy with respect to employment decisions and should avoid pregnancy-related stereotypes and assumptions about an employee’s capabilities or job ambitions. Even well-intentioned employer decisions aimed at protecting an employee’s pregnancy, fertility, or fetus will “rarely, if ever, justify sex-specific job restrictions” as a “bona fide occupational job qualification,” in the absence of evidence that the specific employee has limitations on performing the functions of the job.

The Guidance emphasizes that numerous pregnancy-related impairments may be considered a “disability” under the ADA and trigger employers’ reasonable accommodation duties. Notably, the EEOC now adopts the position that, even under the PDA, employers must offer accommodations, such as light duty assignments, to pregnant employees if the employer provides the same accommodation to non-pregnant employees with similar work restrictions. Other accommodations employers may be required to offer pregnant employees include modified work schedules (e.g., more frequent breaks, or later arrival times due to pregnancy-related fatigue or morning sickness), purchasing or modifying equipment or devices (e.g., providing a pregnant employee with a stool so she can be seated when working in a position that would ordinarily require her to stand), or altering how a job function is performed (e.g., allowing a pregnant employee with pregnancy-related carpal tunnel syndrome to dictate notes and have assistants input the data, rather than requiring the pregnant employee to use a keyboard).

New Changes to EEOC’s Guidance

The new Guidance is divided into four sections addressing the PDA, the ADA, related laws such as the FMLA, and best practices for employers. As established under the PDA, employers are prohibited from discriminating against an employee on the basis of pregnancy, childbirth, or related medical conditions, and they must treat pregnant employees the same as other employees who are similar in their abilities or inabilities to work.

Now, the EEOC construes the PDA to be more closely intertwined with other federal laws—thus expanding and complicating the scope of employers’ duties to employees with pregnancy-related conditions. Below are highlights of the EEOC’s new Guidance:

• Employees who are temporarily unable to perform the functions of their job due to pregnancy-related conditions must be treated the same as other, non-pregnant employees with similar abilities or inabilities to work, including providing them accommodations. If, for example, an employer provides light duty assignments to non-pregnant employees injured on the job, comparable light duty assignments must also be offered to pregnant employees with similar limitations on their ability to perform work.
• Pregnancy or childbirth-related conditions may qualify for accommodations under the ADA, so long as such accommodations are reasonable and do not impose undue hardship on the employer. Such conditions include morning sickness, lactation, and gestational diabetes. While pregnancy itself is not a disability under the ADA, pregnancy-related impairments that substantially limit a major life activity—even if they are only temporary and a normal condition of pregnancy—may qualify as a disability under the ADA. Employers must also accommodate impairments of the reproductive system that lead to physical restrictions to enable a full-term pregnancy, such as conditions that require bed rest during pregnancy.
• Pregnant employees and new parents are protected from a range of potentially-discriminatory actions taken against them by their employers. For example, the Guidance states that employers that provide health care insurance may not exclude prescription contraceptives in employee health plans regardless of whether the contraceptives are provided for birth control or medical purposes, and coverage must be provided under certain circumstances for fertility treatments for women. In addition, any parental leave provided by employers (as distinguished from medical leave associated with childbirth) must be provided on the same terms to similarly situated men and women.

Download: New EEOC Developments Expand Employers’ Pregnancy Accommodation Obligations

1. See http://www.eeoc.gov/laws/guidance/pregnancy_guidance.cfm
2. Both the PDA and ADA apply to private employers, as well as to state and local government employers, with 15 or more employees.