For the first time since 1983, the Equal Employment Opportunity Commission (EEOC) updated its position on pregnancy discrimination by issuing its Enforcement Guidance on Pregnancy Discrimination and Related Issues (Guidance) on July 14, 2014. The Guidance was issued after three of the five Commissioners recommended it. The dissenting Commissioners issued statements challenging the Guidance as not being in line with existing law, legal precedent, and prior EEOC guidance. The Guidance was also published by the EEOC without first requesting or allowing public review and commentary. Moreover, the EEOC’s Guidance was issued shortly after the Supreme Court granted certiorari to hear Young v. United Parcel Service, No. 12-1226 (July 1, 2014), an important case that is expected to clarify an employer’s obligation to accommodate a pregnant worker. Specifically, the issue presented in Young is whether, and in what circumstances, an employer that provides work accommodations to non-pregnant employees with work limitations must provide comparable work accommodations to pregnant employees who are “similar in their ability or inability to work.” In light of the controversial timing and publication of the Guidance prior to the Supreme Court’s ruling in Young, many of the standards set forth in the Guidance could ultimately become moot.
The following are the most controversial provisions of the new Guidance. The EEOC’s Guidance prohibits discrimination on the basis of past, current, and intended pregnancy, even though the Pregnancy Discrimination Act (PDA), a 1978 amendment to Title VII, prohibits discrimination based on pregnancy, childbirth, or related medical conditions. The Guidance requires employers to provide reasonable accommodations to pregnant employees or those with pregnancy-related conditions, even though pregnancy does not automatically qualify as a disability under the Americans with Disabilities Act, as amended (ADA). The Guidance obligates an employer to treat a pregnant employee who is temporarily unable to perform the functions of her job the same as it treats other employees who are similarly unable to perform their jobs, including those with disabilities. The Guidance requires pregnant women with work restrictions to be given light duty if the employer offers light duty to any of its employees under any circumstances, regardless of whether the employer’s light-duty program is limited to employees recovering from on-the-job injuries, which is the very issue to be decided by the Supreme Court in Young. The Guidance also prohibits employers from discriminating against employees based on medical conditions related to pregnancy or childbirth, including lactation, breastfeeding, and abortion. Finally, the Guidance sets forth the EEOC’s position on parental leave and states that parental leave must be provided to men and women on equal terms.