Alerts and Updates

EEOC Issues New Enforcement Guidance on Pregnancy Discrimination

July 15, 2014

Employers should consider revising and updating their pregnancy accommodation policies to comply with the EEOC guidance.

On July 14, 2014, the Equal Employment Opportunity Commission (EEOC) issued new guidelines telling employers that refusing to give reasonable accommodations to pregnant workers is illegal under federal law. The guidelines were issued after a 3-2 vote along partisan lines on the commission and were designed to clarify the landscape of confusing federal laws that employers and courts have interpreted in different ways. It has been more than 30 years, with the 1983 release of a compliance manual chapter on the subject, since the EEOC has released guidance on this topic.

The guidelines have some new provisions:

  • Routine pregnancy-related conditions that did not previously rise to the level of disability, such as back pain, increased water intake and lifting restrictions, can now be considered disabilities covered by the Americans with Disabilities Act, which entitles workers to accommodations at work.
  • Lactation, a thus-far controversial and disputed matter in the courts, is now considered a medical condition, according to the EEOC guidance.
  • Employers can no longer deny reasonable accommodations to pregnant workers who are unable to lift heavy objects or need more bathroom breaks.

The guidelines also affirm some preexisting law:

  • Medical conditions related to pregnancy that are otherwise considered disabilities, such as gestational diabetes and preeclampsia, must be reasonably accommodated.
  • Employers are still prohibited from demoting or firing employees when they announce their pregnancies, intent to become pregnant or pregnancy-related medical conditions.

According to EEOC general counsel P. David Lopez, the guidance was motivated by the fact that the number of pregnancy discrimination complaints have been steadily rising. The most recent EEOC data shows a 46-percent increase from fiscal year 1997 to 2011.

The guidance includes a discussion of discrimination based on the use of infertility treatments and contraception, which is already moot after the recent Supreme Court Hobby Lobby decision that granted an exception to employers on religious grounds.

In addition, the EEOC is calling for equal parental leaves for both mothers and fathers for bonding, although the guidelines suggest giving mothers additional "child birth" leave to recover physically. At present, both mothers and fathers qualify for unpaid leave under the Family and Medical Leave Act if they have worked full time for at least one year for a large company, but fathers tend to have little if any paid parental leave compared to mothers, which the EEOC says is discriminatory.

The EEOC has issued a fact sheet for small businesses, as well as a Q-and-A page in conjunction with the guidelines.

What This Means for Employers

The EEOC guidelines mark a growing trend toward protections for pregnant workers, as seen in recent state and local legislation, which we recently reported about in other Duane Morris Alerts:

Philadelphia – Philadelphia Employers Required to Provide Written Notice of Employment Law Protections for Pregnant Women by April 20, 2014

Illinois – Guidance for Illinois Employers on Amendments to the Human Rights Act and a Reminder to All Employers Regarding Obligations to Women Affected by Pregnancy and Childbirth

New Jersey – New Jersey Adds Pregnancy to List of Classes Protected by Its Law Against Discrimination

New York City – New York City Bill Prohibits Discrimination in Employment Based on Pregnancy

The impact for employers at this point, however, is unknown since the U.S. Supreme Court has just agreed to hear a case on this very issue. The case, Peggy Young v. United Parcel Service, was brought by a pregnant UPS worker who was denied light-duty work and terminated when her doctor gave her lifting restrictions based on her pregnancy. The Supreme Court will hear the case in the 2014–2015 term, and its decision could make the EEOC's guidelines moot.

Nonetheless, employers should consider revising and updating their pregnancy accommodation policies to comply with the EEOC guidance. This development highlights the EEOC's willingness to litigate pregnancy-related discrimination complaints, so employers should be aware of potential pregnancy discrimination claims.

For Further Information

If you have any questions about this Alert, please contact any of the attorneys in our Employment, Labor, Benefits and Immigration Practice Group or the attorney in the firm with whom you are regularly in contact.

Disclaimer: This Alert has been prepared and published for informational purposes only and is not offered, nor should be construed, as legal advice. For more information, please see the firm's full disclaimer.