EEOC Effectively Declares Pregnancy a "Disability" Requiring Reasonable Accommodation — Even When the Pregnant Employee Is Not Disabled

The Equal Employment Opportunity Commission has recently declared that pregnancy alone, even without other underlying medical conditions, may require employer accommodations according to recent guidance released July 14, 2014. In a controversial decision splitting the commissioners 3-2, the EEOC broadcast a specific focus on pregnancy-related discrimination due to a continued uptick in charges and complaints over the past several years. With this in mind, employers should consider taking a closer look at pregnancy-related requests for accommodation before deciding on a course of action.

The EEOC’s Enforcement Guidance on Pregnancy Discrimination and Related Issues instructs employers to treat pregnant employees the same as non-pregnant employees “who are similar in their ability or inability to work.” This focus on abilities seems to strip away any distinction over the underlying cause. For example, an employer may provide temporary light duty accommodations to an employee that suffered a back strain on the job. While the back strain is not necessarily a disability, many employers accommodate the condition in order to keep the employee working and avoid workers’ compensation costs. At the same time, many of these same employers have historically not provided light duty to employees who have similar restrictions of a temporary nature that are not work-related: the incentive to avoid worker’s compensation costs with such accommodations does not exist. However, under the new EEOC guidance, an employer that offers such light duty accommodations is required to provide a pregnant employee with a similar light duty accommodation, despite the fact that the employee’s inabilities are related solely to their pregnancy and have no relation to the workplace and may not even qualify as a medical disability. In fact, the EEOC specifically states in the new guidance that light duty programs restricted to workers injured on the job violates the Pregnancy Discrimination Act.

The controversy over this new guidance stems from the fact that this very issue is now pending before the U.S. Supreme Court in Young v. United Parcel Service, which is an appeal from a federal appellate court decision which specifically disagreed with the EEOC’s position on this issue. Of course, the decision by the Supreme Court will ultimately trump the EEOC guidance, and may render it useless. Furthermore, the Pregnant Workers Fairness Act is currently pending in Congress, which would similarly address this very issue. Whatever the outcome of these pending matters, it is clear the EEOC is specifically focused on the subject and is taking non-legislative steps to impact the law regarding pregnant employees.

The take-away for employers is likely two-fold. First, employers should think long and hard, and reconsider all actions that may be taken, or not taken, if an employee situation involves pregnancy – the EEOC is certainly doing so. Second, if you have a light duty program that is limited to support only work-related injuries or conditions, you may need to re-consider this policy – at least for the near term if you want to stay out of the EEOC’s crosshairs.

To assist employers, the EEOC also released a Questions and Answers guide and a Fact Sheet alongside the new guidance. Employers may wish to consult with counsel to review accommodation and light duty policies in light of this new guidance while it is in effect.