New EEOC Enforcement Guidance Significantly Expands Pregnancy Discrimination Law

July 18, 2014

This week, the U.S. Equal Employment Opportunity Commission posted updated enforcement guidance on the Pregnancy Discrimination Act, adopting new and substantive changes to the law that would effectively enact a similar measure currently pending in Congress.  Two of the five EEOC Commissioners, Constance S. Barker and Victoria A. Lipnic, voted against the guidance and posted dissenting statements noting the EEOC may have overstepped its legal authority by extending the ADA's "reasonable accommodation" standard to pregnant employees.  (Pregnancy in and of itself is not considered a "disability" under the ADA, though a pregnancy-related condition could trigger coverage.)  Specifically, under the new guidance:

  • A pregnant employee is, as a practical matter, entitled to reasonable accommodation as defined by the ADA, even if that individual does not have a disability covered under the ADA;

  • Employers are required to provide light duty to pregnant employees upon request, even if the employer's policy limits light duty to employees injured on the job or to employees with ADA-covered disabilities;

  • Employers who provide leave beyond what they usually allow as a "reasonable accommodation" for employees with ADA-covered disabilities must also provide such additional leave to pregnant employees;

  • Employers who offer health insurance must cover pregnancy, childbirth, and related medical conditions, and must provide the same pregnancy-related benefits (including prescription contraceptives) as it provides for benefits relating to other medical conditions; and

  • Certain employer inquiries, comments, or discussions regarding an employee's pregnancy or potential pregnancy may be indicative of discrimination.
The new guidance is the first comprehensive update of the EEOC's enforcement policy on pregnancy discrimination since 1983, and essentially adopts the requirements in the Pregnant Worker's Fairness Act (S. 942 and H.R. 1975) introduced in Congress.  Currently, the federal Appeals Courts are split on whether pregnant employees can be denied accommodations such as light duty when other workers with disabilities receive them, and the Supreme Court recently decided to hear a case (Young v. United Parcel Service) that could strike down part of EEOC's guidance.