New EEOC Enforcement Guidance Requires Accommodation of Pregnant Workers

Posted 08-19-2014

On July 14, 2014, the federal Equal Opportunity Employment Commission (EEOC) issued its first enforcement guidance on pregnancy discrimination in more than 30 years. The 2014 Guidance,which does not have the power of law or regulation, but which could be the basis for an investigation and EEOC charge, analyzes employee rights and employer responsibilities under not only the Pregnancy Discrimination Act (PDA), but also the American with Disabilities Act (ADA), the Family and Medical Leave Act (FMLA), and state laws.

The new Guidance reinforces fundamental PDA requirements: An employer may not discriminate against or harass an employee based on past, current, or intended pregnancy, childbirth, or related medical conditions, including lactation; and women affected by pregnancy, childbirth, or related medical conditions must be treated the same as other employees similar in their ability or inability to work.

There are several controversial items in the Guidance, especially the requirement that: “The PDA requires workplace adjustments for pregnant employees if the adjustments would be required for an employee with an ADA-covered disability.” In other words, even though the ADA says that a normal, healthy pregnancy is not a disability, the employer may nevertheless have to provide the same reasonable accommodations to a pregnant worker that it provides to a disabled worker. For example, as the Guidance explains, a worker who, because of a back injury, has a 20-pound lifting restriction that lasts for several months, is an individual with a disability under the ADA and is entitled to reasonable accommodation, absent undue hardship. Therefore, a woman who has a similar lifting restriction due to pregnancy is also entitled to the same accommodation. (Note that while reasonable accommodation of pregnancy-related limitations is new to federal law, a number of states and cities, including California, Hawaii, Illinois (effective 1-1-15), Maryland, Minnesota, New Jersey, West Virginia, New York City, and Philadelphia already require those accommodations.)

Another controversial item is the Guidance’s assertion that employers cannot reserve light duty jobs for employees who have suffered on-the-job injuries, but must provide those jobs to pregnant workers, as well.

What this means to you:

The new EEOC Guidance provides a long list of suggested best practices for preventing violations and removing EEO barriers, including:

  • Train managers and employees regularly about their rights and responsibilities

Include federal, state, and local laws and regulations, including PDA, ADA, FMLA, as well as relevant employer policies.

  • Focus on the applicant’s or employee’s qualifications for the job in question. Do not ask about pregnancy status, children, plans to start a family, etc. during interviews or performance reviews.
  • Make sure employment decisions are well documented.
  • Expeditiously consider reasonable accommodation requests made by employees with pregnancy-related disabilities.
  • Grant accommodations where appropriate.

 Information here is correct at the time it is posted. Case decisions cited here may be reversed. Please do not rely on this information without consulting an attorney first.

2016-11-18T16:00:35+00:00

About the Author:

Ann Kiernan has litigated claims of wrongful discharge and discrimination before state and federal courts and administrative matters before the New Jersey Division on Civil Rights, the National Labor Relations Board and the Equal Opportunity Employment Commission, representing both employers and employees. Ms. Kiernan co-hosted The Employee Rights Forum, a weekly radio call-in show reaching up to a half-million listeners in the New York metropolitan area, and her articles on employment law have been published in many books and magazines. Both as a firm partner and as a director, Ms. Kiernan gained solid experience in management and human resources compliance. She has worked with Fair Measures since 1997.