On July 14, the Equal Employment Opportunity Commission issued its first guidance on pregnancy discrimination since 1983. The fact that the commission released new guidance on pregnancy discrimination was not a surprise to many employers.
In the EEOC’s strategic enforcement plan, they made it clear that pregnancy discrimination was a concern of the agency, and that employers’ practices relating to pregnant employees would be scrutinized. Along with the guidance, the EEOC issued a fact sheet and Q&A sheet, which can be found on its website.
As background, the Pregnancy Discrimination Act, which is an amendment to Title VII of the Civil Rights Act of 1964, prevents the unfavorable treatment of an applicant or employee because of pregnancy, childbirth or a related medical condition. Pregnancy has a broad definition under the act, and includes the initial reproductive process to post-birth activities including lactation.
The first major change was the interaction between the Pregnancy Discrimination Act and the Americans with Disabilities Act. Many employers were already aware that the EEOC and some courts have treated pregnancy-related medical conditions as disabilities. Employees with disabilities, as defined by the Americans with Disabilities Act, have the right to request a reasonable accommodation and engage in the interactive process.
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However, there is a more surprising change in the guidance. The EEOC said employers must consider offering reasonable accommodations for women with normal, uncomplicated pregnancies if the employer offers reasonable accommodations to employees with disabilities -- which they are required to do under the ADA. Essentially, the EEOC has created a reasonable accommodation requirement for normal pregnancy.
Another major change is that the EEOC now requires employers that offer light duty for work-related injuries to offer light duty to pregnant employees who may require it as well.
While the guidance has been issued, subsequent legislative or judicial activity may limit its effect. The Supreme Court of the United States has taken a case that will decide a split among the circuits as to whether employers that provide work accommodations to non-pregnant employees must provide them to pregnant employees as well.
As a result of this decision, the guidance may have to be revised or possibly even scrapped altogether.
As this area of the law is in constant flux, it is recommended that you seek experienced employment counsel to help you deal with any related issues.
Sarah Phaff is an employment law attorney in Atlanta and Macon at the national labor and employment law firm of Constangy, Brooks, & Smith LLP.