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EEOC Issues New Enforcement Guidance on Pregnancy Discrimination Under The PDA and ADA: Employers Should Expect Heightened Enforcement

On July 14, 2014, the Equal Employment Opportunity Commission ("EEOC") issued enforcement guidance on pregnancy discrimination and related matters. It is the first comprehensive update of the EEOC's guidance on the subject of discrimination against pregnant workers in more than thirty (30) years. In addition to addressing the requirements of the Pregnancy Discrimination Act ("PDA"), the guidance addresses the application of the Americans with Disabilities Act ("ADA") as amended in 2008, to individuals who have pregnancy-related disabilities. As a result of the new guidance, employers can expect heightened enforcement efforts in the area of pregnancy discrimination and related issues. 

Much of the analysis in the guidance discusses established law in the area of pregnancy discrimination. Employers may not take adverse action (such as reassignment, forced leave of absence) against an employee because of pregnancy, childbirth or related medical condition - even when the employer believes it is acting in the employee's best interest. Employment decisions based on assumptions or stereotypes are prohibited. For example, an employer may not involuntarily reassign a pregnant employee to a lower paying job involving fewer deadlines based on an assumption that the stress and fast-paced work required in her current job would increase risks associated with her pregnancy.

The PDA also protects employees who are not currently pregnant based on their ability or intention to become pregnant. Employers are prohibited from discriminating against an employee because she has stated that she intends to become pregnant. While it is not unlawful per se to ask applicants or employees pregnancy-related questions, such questions are discouraged, as they could be considered evidence of discriminatory animus.

Employees and applicants are also protected from discrimination because of past pregnancy or childbirth. Thus, for example, an employer would violate the PDA by terminating an employee shortly after she returns from medically-related pregnancy leave following the birth of her child if the employee's pregnancy is the reason for the termination. Close proximity between the employee's return to work and an employer's decision to terminate her, along with an explanation that is not believable could be evidence of pregnancy discrimination.

In addition to reiterating established law, the EEOC's guidance arguably purports to expand the scope of the PDA by requiring employers to provide reasonable accommodations to employees who have work restrictions because of their pregnancy, regardless of whether the women have a disability as defined by the ADA. Thus, the EEOC appears to be interpreting the PDA, a nondiscrimination law, as one now requiring reasonable accommodation.

In addition, the EEOC is also taking the position that employers must treat pregnant employees the same as employees injured on the job when it comes to light duty policies. According to the EEOC, if a pregnant employee needs light duty (temporary work that is less physically demanding than her normal duties), the employer is required under the PDA to provide it if the employer provides light duty for employees who are not pregnant but who are similar in their ability or inability to work. Thus, according to the EEOC, "an employer may not deny light duty to a pregnant employee based on a policy that limits light duty to employees with on-the-job injuries." The United States Supreme Court will likely address this issue next term in Young v. United Parcel Service Inc., when it considers an appeal from a decision of the United States Court of Appeals for the Fourth Circuit. The Fourth Circuit, contrary to the EEOC's position in its guidance, held that an employer did not violate the PDA by refusing to provide light duty work to a pregnant employee where the employer had a policy that limited light duty to certain categories of workers, such as those who have been injured on the job.

The EEOC's guidance also identifies "best practices" for employers to reduce the chance of pregnancy-related PDA and ADA violations, including proactive measures in the areas of hiring, promotion and other employment decisions, leave and other fringe benefits, terms and conditions of employment and reasonable accommodation.

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