New Guidance on Pregnancy Discrimination and Bias

Amid controversy, and with a pending United States Supreme Court decision lurking in the background - the Equal Employment Opportunity Commission (EEOC) issued updated guidance on discrimination, harassment and bias under the Pregnancy Discrimination Act.

A fact sheet created by the EEOC for small businesses addressing the new guidancecan be accessed here. 

Under the PDA, employers are required to treat women affected by pregnancy, childbirth and related medical conditions in the same manner as other employees (or applicants for employment) with respect to leave time, attendance issues and other work-related restrictions. Employers cannot discriminate against employees because of their pregnancy, pregnancy related medical conditions, childbirth or past pregnancy, or because of an employer's intention, desire or potential to become pregnant. Such prohibition also includes discrimination on the basis of lactation or breastfeeding. The PDA also prohibits harassment because of pregnancy or pregnancy-related conditions.

The new guidance issued by the EEOC clarifies that employers must provide the same benefits of employment to women affected by pregnancy as they do to other employees who are restricted similarly in their ability to perform work. This includes, light duty in certain situations, alternative assignment or job duties, leave or other accommodations. Significantly, the new guidance makes clear that employers must allow women with physical limitations resulting from pregnancy or childbirth to take leave under the same conditions that other leave is generally available, and that pregnant workers may have impairments related to their pregnancy that qualify as a disability under the Americans with Disabilities Act, which can entitle such employees to additional accommodations.

For additional details regarding the updated guidance, you can review the Q&A issued by the EEOC here and read the complete guidance here.  You can also review our prior blog entry on pregnancy and family responsibility discrimination.

One of the main areas of controversy with the new guidance - in addition to its timing - is that the the accommodation obligations under the PDA under the EEOC's new guidance do not require that an employee actually have a disability under the ADA to be accommodated. Rather, the new guidance requires accommodation for pregnancy (and pregnancy related conditions) in the same manner that employees accommodate other employees for injury related leave or disability leave.  The EEOC's new guidance suggests that the following types of accommodations may be appropriate, depending on the circumstances:

- elimination of non-essential job functions (e.g. lifting);

- modifying workplace policies;

- providing teleworking opportunities, where feasible; 

- granting additional leave time; and

- temporarily reassignment to different positions

Of course, for employers with more than 50 employees in a 75 mile radius, obligations under the FMLA will interact with both the ADA and these new enforcement requirements under the PDA. In addition, employers will need to reexamine the interaction between light duty for workers' compensation claims and the PDA's new accommodation requirements.

The extent to which these changes will create new obligations will in large part depend on the U.S. Supreme Court's decision in Young v. United Parcel Service. Young involves the issue of whether the  PDA's provision (codified at 42 U.S.C. § 2000e(k)) that provides that “women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes * * * as other persons not so affected but similar in  their ability or inability to work" requires an employer that provides work accommodations to  non-pregnant employees with work limitations to provide work accommodations to pregnant employees who are “similar in their ability or inability to work.”  The Fourth Circuit held that PDA did not impose such an obligation and the U.S. Supreme Court agreed to review its decision.

For additional information regarding the PDA, ADA, FMLA or Workers Compensation, please contact one of the lawyers at Stavros Law P.C. at (801) 758-7604, or visit our website at www.stavroslaw.com.