By Kathleen O’Day, EdD, SPHR

The recent publication by the EEOC on Enforcement Guidance on Pregnancy Discrimination should be reviewed carefully in relation to your company policies and practices regarding pregnancy, leaves of absence, and accommodations for pregnancy-related issues such as providing light duty or providing a lactation facility. Note: The ADA specifically excludes pregnancy as a disability; nonetheless, many medical conditions associated with pregnancy may qualify for medical/other personal care under the recent guidelines.

On July 14, 2014, a divided Equal Employment Opportunity Commission (EEOC) issued guidance regarding supervision and other pregnancy discrimination, including revisions or clarifications related to the Pregnancy Disability Act (PDA), ADA, Nursing Mothers Act, and Affordable Care Act (ACA), among others. The definition of “pregnancy and pregnancy-related conditions” is available here. The document issued on July 14^th provides guidance regarding PDA and ADA as they apply to pregnant workers. The Guidelines became effective immediately and will not expire until rescinded or superseded.

The PDA prohibits discrimination based on current, past, potential or intended pregnancies and/or medical conditions related to pregnancy or childbirth. The EEOC’s definition of “pregnancy and pregnancy-related conditions” is quite broad. It encompasses every aspect of the reproductive process, including conception, pregnancy or termination of pregnancy, childbirth and post-birth, including lactation. Prohibition of discrimination in all aspects of employment, including hiring, terminations, promotions, and eligibility for health insurance benefits, are covered by the newly issued Guidelines.

The July 14, 2014 EEOC Guidelines state that:

1. An employer may not discriminate against an employee on the basis of pregnancy, childbirth, or related medical conditions; and,
2. Women affected by pregnancy, childbirth, or related medical conditions must be treated the same as other persons not so affected but similar in their ability or inability to work.
3. An employer must consider reasonable accommodations, including light duty as offered to non-pregnant employees who are similarly situated.

Stay tuned on the requirement to offer light duty, because the Supreme Court is expected to issue a ruling in the next term about “whether pregnancy accommodation is required under the PDA…. If the Supreme Court finds that the PDA does not require pregnancy accommodation, then the EEOC will have to scrap those portions of its Enforcement Guidance unless Congress legislatively overrules the Court by amending the PDA. Even if the Supreme Court finds that pregnancy accommodation is required, it’s possible that nuances of the Court’s decision will require revisions to the Enforcement Guidance.” (Constangy, Brooks & Smith, LLP, Client Bulletin #538)