The Equal Employment Opportunity Commission (” EEOC”) on July 14, 2014 issued an Enforcement Guidance on Pregnancy Discrimination The document, which was not published for public comment prior to its release, purports to provide guidance regarding the Pregnancy Discrimination Act (“PDA”) and the Americans With Disabilities Act (“ADA”) as it applies to pregnant workers. The fact that the EEOC issued this guidance is not surprising given its inclusion of pregnancy discrimination as one of the priorities outlined in its Strategic Enforcement Plan. This is the first such guidance issued by the EEOC since 1983.
The document is extensive and covers a number of issues. One of the primary areas of focus is likely to be the EEOC’s position that the PDA requires employers to provide reasonable accommodation to employees who have work restrictions because of pregnancy, even if the employee does not qualify as disabled or is not regarded as disabled under the ADA. This particular issue is also the subject of acase recently accepted by the United States Supreme Court, Young v. UPS.
Other highlights of the guidance include the following:
-The PDA prohibits discrimination based on current pregnancy, past pregnancy, potential or intended pregnancy, and medical conditions related to pregnancy or childbirth.
– Employment decisions based on a female employee’s use of contraceptives may constitute unlawful discrimination based on gender and /or pregnancy. Employers can also violate Title VII , by providing health insurance that excludes coverage of prescription contraceptives, whether the contraceptives are prescribed for birth control or for medical purposes.
– There are various circumstances in which discrimination against a female employee who is lactating or breast feeding can implicate Title VII.
– Title VII, as amended by the PDA, requires employers to provide a work environment free of harassment based on pregnancy, childbirth, or related medical conditions. Liability can result from the conduct of a supervisor, coworker or non-employee, such as a customer or business partner over whom the employer has some control.
The guidance also contains the EEOC’s recommended best practices for avoiding unlawful discrimination against pregnant workers and those otherwise covered by the PDA. For the most part, the guidance is consistent with existing law, but certain provisions, particularly those related to the use of contraceptives and providing accommodation to all pregnant employees regardless of disability status, are likely to stir up controversy and require future examination by the courts.