The U.S. Equal Employment Opportunity Commission (EEOC) recently issued new Enforcement Guidance regarding pregnancy discrimination, marking the agency’s first official update since 1983. The guidance addresses compliance under both the Pregnancy Discrimination Act of 1978 (PDA) and the Americans With Disabilities Act (ADA)
, both of which apply to employers with 15 or more employees. New Jersey employers should remember that New Jersey also recently amended its Law Against Discrimination (NJLAD) in a similar fashion which will require compliance by all New Jersey employers without regard to the number of persons employed.
The PDA requires employers to treat women affected by pregnancy, childbirth, or related medical conditions in the same manner as other applicants or employees who are similar in their ability or inability to work. The PDA covers all aspects of employment, including firing, hiring, promotions, and fringe benefits (such as leave and health insurance benefits).
The EEOC advises that since lactation is a medical condition related to pregnancy, employers may not discriminate against an employee because of her breastfeeding schedule. The guidance also states that an employer may not treat pregnant workers differently from employees who are similar in their ability or inability to work based on the cause of their limitations. “For example, 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 EEOC explains.
New Jersey has taken this even further. It requires that employers accommodate pregnant employees even when they cannot perform the essential functions of their job. This is a major departure from traditional disability legal concepts.
Pregnancy and the ADA
Pregnancy is not expressly considered a disability under the ADA. However, the EEOC makes it clear that employees with pregnancy-related impairments may be entitled to reasonable accommodations, so long as their condition substantially limits their ability to perform one or more major life activities. Examples provided by the agency include pregnancy-related carpal tunnel syndrome, gestational diabetes, pregnancy-related sciatica, and preeclampsia
According to the guidance, accommodation of pregnancy-related disabilities “might include allowing a pregnant worker to take more frequent breaks, to keep a water bottle at a work station, or to use a stool, altering how job functions are performed; or providing a temporary assignment to a light duty position.”
The Message for Employers
The EEOC’s guidance represents the agency’s view of what employers should do to avoid pregnancy discrimination claims. While the best practices prescribed may not be binding law, they should also not be taken lightly as they will form the basis for the agency’s enforcement efforts. The cost of arguing the limits of the EEOC’s powers under the Administrative Procedures Act in federal court should be weighed carefully.
For more definitive answers regarding the type of accommodation employers are required to provide pregnant workers, the U.S. Supreme Court will consider Young v. United Parcel Service, Inc.
next term. We will preview the case in the coming weeks, so please check back for updates.
If you have questions about the EEOC pregnancy discrimination guidance or want to ensure that your business is in compliance, please contact me, Gary Young, or the Scarinci Hollenbeck Labor and Employment attorney with whom you work.