The Equal Employment Opportunity Commission (EEOC) has issued its first comprehensive update of a 1983 Compliance Manual chapter on the subject of the Pregnancy Discrimination Act (PDA) and related issues. The Guidance, which was not submitted for public comment prior to its issuance, also discusses the application of the Americans with Disabilities Act (ADA), as amended in 2008, to individuals with pregnancy-related medical impairments, consistent with the EEOC’s Strategic Enforcement Plan priority of addressing the overlap between the PDA and the ADA.

The document – which, at over 30 pages of text and 181 footnotes is more than a “quick read” – focuses on four areas: an overview of the PDA’s statutory protections; the ADA’s protections for pregnant workers; other issues affecting pregnant workers (including the Family and Medical Leave Act, caregiver laws, break times for nursing mothers, and applicable state laws); and “best practices” for employers.

The EEOC’s intended take-aways from the initial section are clear:

  • The PDA’s protections extend beyond pregnancy, and include potential/intended pregnancy (i.e., fertility treatment), past pregnancies, caregiving responsibilities, and lactation/breastfeeding;
  • An employer is obligated to treat a pregnant employee the same as it treat others similarly unable to perform their jobs, whether by modifying job tasks, reassigning the employee (including to light duty), or providing leave;
  • Harassment, disparate impact, and disparate treatment all are prohibited under the PDA. 

The second section of the Guidance details the EEOC’s view of pregnancy-related conditions as disabilities. It includes the specific statements that “[u]nder the ADAAA, there is no requirement that an impairment last a particular length of time to be considered substantially limiting,” and that “the ADAAA includes the operation of bodily functions [including the reproductive system] as major life activities.” These statements are followed by series of examples that illustrate the EEOC’s view of what does – and does not – constitute a disability with regards to pregnant women, and a list of “examples of reasonable accommodations that may be necessary for a disability caused by pregnancy-related impairments.”

The third section of the Guidance mentions the FMLA, Executive Order 13152 (prohibiting discrimination in federal employment based on an individual’s status as a parent), mandated break time for nursing mothers, and the interplay of state laws wither federal pregnancy discrimination obligations. In that section, the EEOC quotes a 1987 California case in which the court stated that Congress intended the PDA to be a “floor beneath which pregnancy disability benefits may not drop – not a ceiling above which they may not rise.” The import is clear: employers must comply with all laws, including state and local, regarding pregnant employees, even if those laws are more expansive than the PDA itself.

In its final section, the Guidance addresses five separate topics, and provides guidelines to assist employers “to reduce the chance of pregnancy-related PDA and ADA violations and to remove barriers to employment opportunity.” In other words, the EEOC lists the areas in which it will be looking in the event that a charge of discrimination is filed against an employer. The five areas, along with EEOC suggestions for employer action, are:

  • General Policy Requirements – developing, disseminating and enforcing a strong policy, and training managers on that policy;
  • Hiring, Promotion, and Other Employment Decisions – focusing on job-related qualifications and assuring that job opportunities are communicated to all eligible employees;
  • Leave and Other Fringe Benefits – assuring that there is no disproportionate impact on pregnant workers, and reviewing policies periodically to confirm that;
  • Terms and Conditions of Employment – monitoring compensation, light duty, reassignment, employee training, and access to workplace networks to assure equal opportunity for participation by pregnant employees; and
  • Reasonable Accommodation – having a process in place for “expeditiously considering reasonable accommodation requests . . . and for granting accommodation where appropriate,” and training managers to recognize such requests.

Of the issues addressed in the Guidance, the one that has received the most attention is the EEOC’s assertion that employers are required to treat a pregnant employee (who temporarily is unable to perform the functions of her position) in the same manner that it treats other employees similar in their ability or inability to work. According to the EEOC, such treatment could include modified tasks, alternative assignments (including light duty), or fringe benefits in the form of disability leave or leave without pay.

The reason for the attention is the fact that recently, the U.S. Supreme Court agreed to hear a case (Young v. UPS, Inc.) during its 2015 term that is centered on the question of whether pregnant women are entitled to light duty simply because of their pregnancy, absent any other physical impairment. Because that case has not yet been decided, and because there is a split among the federal court circuits on the issue, the EEOC’s published guidance is viewed by many (including two of the five EEOC Commissioners, who dissented from the language of the Guidance) as premature.

However, the primary take-away from this Guidance is that the EEOC is training its attention on the issue of pregnancy discrimination, and is providing a roadmap for the path that it plans to take to review and investigate employers against whom PDA and ADA complaint are made.  Employers would be wise to review the Guidance, and its associated Q&A page, and to consider the “best practices” suggested, because although the Guidance does not have the force of law that a statute does, it will be viewed by courts as an expression of the EEOC’s interpretation of the applicable statutes. Small business should review the EEOC’s Fact Sheet for Small Businesses that accompanies the Guidance.