EEOC Issues New Guidance on Pregnancy Bias

By Kevin P. McGowan    

July 14 --Partly addressing issues pending before the U.S. Supreme Court, the Equal Employment Opportunity Commission July 14 issued new enforcement guidance under the Pregnancy Discrimination Act that also covers possible workplace accommodation requirements.

The agency adopted the new guidance, which updates a 1983 EEOC Compliance Manual chapter on the PDA, by a 3-2 private vote. EEOC Chairman Jacqueline Berrien (D) and Commissioners Chai Feldblum (D) and Jenny Yang (D) approved the measure, while the two Republican commissioners, Constance Barker and Victoria Lipnic, opposed it.

Among other things, the new guidance says the PDA, a 1978 amendment to Title VII of the 1964 Civil Rights Act, requires employers to offer light duty to pregnant employees if they make light duty available to nonpregnant employees similar in their ability or inability to work.

On July 1, the Supreme Court in Young v. United Parcel Service Inc. agreed to review a U.S. Court of Appeals for the Fourth Circuit decision that the PDA doesn't require employers to offer light duty to pregnant employees with work restrictions even if light duty is available for certain categories of nonpregnant employees.

The EEOC in February 2012 held a public meeting on pregnancy and caregiver discrimination, at which witnesses said bias against pregnant workers is still widespread. Some speakers called for updated agency guidance under both the PDA and the amended Americans with Disabilities Act.

“Despite much progress, we continue to see a significant number of charges alleging pregnancy discrimination…as well as the emergence of more subtle discriminatory practices,” Berrien said in a July 14 statement.

“This guidance will aid employers, job seekers, and workers in complying with the Pregnancy Discrimination Act and the Americans with Disabilities Act, and thus advance EEOC's Strategic Enforcement Plan priority of addressing the emerging issue of the interaction between these two anti-discrimination statutes.”

Mixed Reactions to Guidance

Rae Vann, general counsel of the Equal Employment Advisory Council in Washington, which represents large employers, said she was “rather surprised” the EEOC would issue new guidance without seeking “any input or feedback” from the public on a draft beforehand.

Given the prospective Supreme Court decision under the PDA, it also “seems quite premature” for the EEOC to issue its enforcement guidance at this point, Vann told Bloomberg BNA July 14.

Light Duty, Leave and Benefits

In a question-and-answer sheet issued along with the new enforcement guidance, the EEOC said the PDA requires an employer to offer temporary light duty to a pregnant employee with work restrictions if the employer provides such an accommodation to nonpregnant employees similar to the pregnant employee in their ability or inability to work.

An employer may not deny light duty to pregnant employees on the grounds that such an accommodation is only offered to workers injured on the job because a distinction based on source of impairment would violate the PDA, the EEOC said.

In its Q&A sheet, the EEOC said under some circumstances, employees with pregnancy-related impairments may be covered by the ADA.

The EEOC also issued a fact sheet for small businesses outlining the PDA's and ADA's requirements regarding pregnant employees.

To contact the reporter on this story: Kevin P. McGowan in Washington at kmcgowan@bna.com

To contact the editor responsible for this story: Susan J. McGolrick at smcgolrick@bna.com


Text of the EEOC's enforcement guidance is available at http://www.eeoc.gov/laws/guidance/
pregnancy_guidance.cfm
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The Q&A is available at http://www.eeoc.gov/laws/guidance/
pregnancy_qa.cfm
.

The fact sheet is available at http://www.eeoc.gov/eeoc/publications/pregnancy_factsheet.cfm.