In our March blog, we cautioned that states were starting to enact their own laws to further protect pregnant women’s rights in the workplace.  The Pregnancy Discrimination Act (PDA) made it unlawful to discriminate based on pregnancy when it comes to any aspect of employment, but did not require employers to make accommodations for pregnant employees so they can continue to perform their jobs when faced with pregnancy-related medical conditions.  The federal Pregnant Workers’ Fairness Act was drafted to fill this void, but the Act failed to pass.  In response, some states enacted laws that require employers to provide reasonable accommodations to pregnant employees who suffer medical conditions related to pregnancy and childbirth.

In July, the Equal Employment Opportunity Commission (EEOC) weighed in on this topic by issuing an updated Enforcement Guidance on Pregnancy Discrimination and Related Issues for the first time in 30 years.  Despite much progress, the EEOC continues to see a significant number of charges alleging pregnancy discrimination and its investigations revealed the persistence of overt pregnancy discrimination.  As a result, it issued its updated Guidance to aid employees in complying with the PDA and Americans with Disabilities Act (ADA).

The Guidance clarifies that while pregnancy itself is not a disability; the EEOC views the 2008 amendments to the ADA as making it easier for employees with pregnancy-related conditions to demonstrate the need for reasonable accommodation under the ADA.  Thus, the EEOC guidelines require employers to offer reasonable accommodations to employees with pregnancy-related conditions that may be consistent with disabilities under the ADA.  According to the EEOC, reasonable accommodations 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.  These are the same types of reasonable accommodations required by the various states’ pregnancy discrimination laws.  In essence, the EEOC stated that it interprets the PDA and ADA as already requiring reasonable accommodations for pregnant employees and will enforce them accordingly.

Additionally, the Guidance interprets Title VII as prohibiting discrimination based on an employee’s past pregnancy, infertility treatment, use of contraception, or expressed intent to become pregnant at some point. In effect, the EEOC expanded protection for pregnancy-related matters.

The EEOC Guidance lists a number of considerations for employers. To name a few:

  • Before taking any adverse employment action against a pregnant employee, make sure the organization has adequate documentation of non-discriminatory reasons for the action.
  • What you do not know is best – so avoid inquiring into whether an employee is pregnant.
  • Light duty afforded to others must be afforded to pregnant workers.
  • Parental leave must be provided to similarly situated male and female employees on the same terms.
  • Employers should evaluate restricted leave policies to determine whether they disproportionately affect pregnant employees and, if so, whether those policies are necessary for business operations.
  • Have a process in place for considering reasonable accommodation requests for employees with pregnancy-related conditions.
  • And, perhaps most controversial, an employee must have the same freedom to address lactation-related needs that she and her co-workers would have to address other similarly limiting medical conditions.

    It is important to note, however, that these guidelines do not constitute formal regulation or binding law. Rather, the guidelines are a standard that the EEOC will use when evaluating pregnancy discrimination complaints.  The federal courts will ultimately determine what the PDA actually requires.  Nevertheless, it is important to review your policies related to pregnancy and disability.  Compare your policies to the suggested guidelines outlined by the EEOC.  Consider adopting some of the EEOC guidelines to ensure compliance with the PDA and to avoid discrimination lawsuits.  Also, update your policies annually to keep up with changing circumstances and changing law.


    Please contact a Gjording Fouser lawyer at 208.336.9777 if you would like any additional information about this topic or any other employment issues facing your company.