EEOC Issues Broad Enforcement Guidance on Pregnancy Discrimination

Earlier this month, the Equal Employment Opportunity Commission (EEOC) issued new Enforcement Guidance applicable to the Pregnancy Discrimination Act (PDA) and the Americans with Disabilities Act (ADA), concerning pregnancy-related conditions.  Pregnancy discrimination implicates both the PDA and ADA as well as other federal and New York statutes.

The PDA was enacted in 1978 to clarify that discrimination based upon pregnancy, childbirth or related medical conditions constitutes sex discrimination, in violation of Title VII of the Civil Rights Act of 1964 (Title VII).  Generally, under the PDA, employers are required to treat women affected by pregnancy, childbirth, or related conditions the same as other applicants or employees with respects to all aspects of employment.

The ADA does not consider pregnancy to be a disability, although pregnant employees may have impairments related to their pregnancies that qualify as disabilities under the ADA.  Following 2008 amendments to the ADA, it is much easier for an employee to demonstrate that an impairment rises to the level of a statutory disability.  Thus, under the ADA, reasonable accommodations must be given to employees who suffer from a pregnancy-related disability.

The EEOC’s guidance seeks, among other things, to clarify that the PDA requires reasonable accommodations to pregnant employees, even if the pregnancy does not result in a statutory disability.  The Guidance specifically discusses:

  • That the PDA’s protections extend beyond current pregnancy, and include past pregnancy as well as the potential to become pregnant;
  • Lactation as constituting a pregnancy-related medical condition;
  • Leave issues related to pregnancy and medical conditions;
  • Prohibiting employers from forcing employees who are able to work to take pregnancy leave;
  • That parental leave (which is distinct from medical leave associated with childbearing or recovering from childbirth) be provided to similarly situated men and women on the same terms;
  • The provision of reasonable accommodations under the ADA for employees, who have pregnancy-related impairments; and
  • Employer best practices to avoid discrimination against pregnant employees.

Despite the issuance of this guidance, EEOC Commissioner Constance S. Barker opined that a court would likely strike down the guidance, because it reflects a “dramatic” new interpretation of the PDA that is not supported by the statute.  Under the guidance, it appears that pregnant women, whether or not disabled by their pregnancy, are entitled to the reasonable accommodations much like qualified individuals with a disability under the ADA.  Among Commissioner Barker’s problems with the guidance is the fact that Congress is currently considering whether to amend the PDA to include a reasonable accommodation requirement, thus confirming that the PDA does not currently contain such a requirement.  As a result, Commissioner Barker believes that by imposing a reasonable accommodation requirement, the Guidance goes beyond the scope of the PDA.

As we wrote back in December 2013, New York City law already specifically requires employers to reasonably accommodate pregnant employees.