EEOC Issues New Enforcement Guidance on Pregnancy Discrimination

By Nicole Torrado, Associate at Sanchez & Amador, LLP, Oakland, California

For the first time in over 30 years, the EEOC issued Enforcement Guidance regarding pregnancy disability on July 14, 2014. In general, the Guidance explains Title VII’s prohibition against pregnancy discrimination, describes individuals to whom the Pregnancy Discrimination Act (PDA) applies and discusses how the expanded definition of “disability” under the Americans with Disabilities Act (ADA) it applies to pregnancy-related impairments.

Essentially, the Guidance advises employers to apply the same work place accommodation policies, leave of absence policies, medical benefits, and seniority/retirement benefits to all employees, regardless of whether a request for leave of absence, workplace accommodation, or medical benefit is due to a medical condition related to pregnancy or any other disability. The EEOC concedes that pregnancy is not a “disability” under the ADA, but points out that pregnant workers may have impairments related to their pregnancies that qualify as disabilities under the ADA, even thought these disabilities are temporary.

Work Place Accommodations: The Guidance advises employers treat a pregnant employee temporarily unable to perform the functions of her job the same way it treats other employees similarly unable to perform their jobs, whether by providing modified tasks, alternative assignments, leave, or fringe benefits. For instance, The Guidance states that an employer may not deny light duty assignments to a pregnant employee based on a policy that limits light duty assignments to employees with on-the-job injuries.

This portion of the guidance is particularly controversial, since during its next session the Supreme Court will hear Young v. United Parcel Services, which addresses whether and to what extent an employer must provide pregnant employees with reasonable accommodations under the PDA. Nevertheless, the EEOC Guidance highlights accommodations an employee with a medical condition relating to pregnancy or childbirth might be eligible to receive, such as redistribution of nonessential functions, more frequent bathroom breaks, permit a employee to keep water at a workstation, provide an employee a seat to complete tasks that are normally completed standing, or modifying a schedule to accommodate an employee’s morning sickness.

Leave of Absence: The EEOC Guidance emphasizes that a pregnancy related medical leave of absence must be treated the same as any other type of leave of absence that the employer provides non-pregnant employees. Moreover, the Guidance states that as long as pregnant employee can perform her job, an employer cannot force a pregnant employee to take leave of absence even if the employer believes it is acting in the employee’s best interest. Additionally, if a pregnant employee was on leave for a pregnancy-related condition, she must be allowed to return to work upon recovering from the pregnancy-related condition to the same extent that employees on sick and disability leave for other reasons are allowed to return. If a covered employer provides paid leaves of absences under a sick or leave of absence policy, the Guidance requires that the employer provide a paid leave of absence for a pregnancy-related condition.

Impact of the Guidance: The Guidance sets forth the EEOC’s positions and is not a regulation. However, any guidance document is a directive to EEOC investigators and attorneys, which makes it the standard under which the EEOC will conduct its investigations. The ultimate propriety of the EEOC’s position will be determined by the courts, possibly as soon as the 2014-2015 Supreme Court session. To avoid EEOC actions while federal law is in flux, employers should review and, if needed, revise policies and practices. California and other some other states’ laws already provide pregnant employees the benefits recommended in the EEOC’s Guidance, so many employers should already have compliant policies.

Practical Pointers for Guidance Compliance:

  • If an employee with a medical condition relating to pregnancy or childbirth seeks an accommodation, the employer should provide the accommodations that are provided to non-pregnant employees that receive workplace accommodations (i.e. seats, water, schedule changes, lifting restrictions)
  • When an employee requests a leave of absence or workplace accommodation due to a medical condition relating to pregnancy or childbirth, an employer should use the same standards for evaluating the request as it does for requests from non-pregnant employees seeking an accommodation or leave of absence. The employer should not require that an employee with a medical condition relating to pregnancy or childbirth provide additional documentation beyond what it requires of its non-pregnant employees seeking a leave or workplace accommodation.
  • Policies – and their consistent application — matter. The examples set forth in the Guidance clearly demonstrate that employer policies that are consistently applied will assist the employer to establish non-discrimination.

Nicole M. Torrado handles employment and general business litigation matters in State and Federal Courts throughout California. Nicole has taken fifteen cases to trial, drafted more than twenty-five appellate briefs and argued three cases on appeal.