EEOC's Changed Conception of Pregnancy Spawns New Litigation — and Important Reminders for Employers

Earlier this year, we noted that that the Equal Employment Opportunity Commission (“EEOC”) issued somewhat controversial enforcement guidance regarding pregnancy discrimination. It has now become evident that this enforcement guidance was a precursor of what was to come, as the EEOC has just filed two new lawsuits alleging pregnancy discrimination. According to its press releases, one suit alleges an employer terminated a farm worker shortly after she disclosed she was pregnant, citing fears for her safety and liability even though the employee’s doctor had cleared her to perform the job without medical restrictions. The other suit alleges an employer terminated two employees after learning they were pregnant; the EEOC noted that the owner allegedly made “negative comments” about the pregnancies. This new litigation reiterates the EEOC’s increased focus on pregnancy discrimination claims; it has filed several other pregnancy discrimination lawsuits in the last few months, and the EEOC has filed over 45 lawsuits involving pregnancy discrimination since 2011.

While past cases and the regulations have focused primarily on accommodating pregnant employees, these more recent cases filed by the EEOC focus primarily on stereotypes related to pregnancy and assumptions or comments made by employers about pregnant employees. This uptick in EEOC activity and potential change in strategic focus should serve as a reminder to employers. If an employee discloses a pregnancy but makes no request for accommodation, there should be no change in duties – and no consequences. Logically of course, at some point a discussion regarding the logistics of turning over an employee’s job duties during her pregnancy leave has to take place. But if the employee does not need an accommodation, and particularly if her physician has cleared her to perform her job duties, there generally should be no change in position, duties, or treatment of the employee. However, as we noted in response to the EEOC’s earlier enforcement guidance, if an employer offers accommodations or light duty to other employees even though they do not have a disability, the EEOC’s position (which is currently being challenged in a case pending before the U.S. Supreme Court) is that the employer also must offer that light duty or accommodation to pregnant employee – irrespective of any medical limitations she does or does not have.

These recent cases also serve as a reminder regarding pregnancy-related hostile work environment claims. The EEOC has shown it takes issue with perceived negative comments made to a pregnant employee regarding her pregnancy. Managers and supervisors should be thus be trained and reminded to refrain from making such comments. It is easy to imagine an offhand but animus-free comment venting about the workload that will exist when a pregnant employee takes leave or suggesting that an employee will be less engaged in the job once she has a child, but employers should educate employees regarding avoiding these types of comments.