EEOC Issues Guidance on Pregnant Employees
The U.S. Equal Employment Opportunity Commission (“EEOC”) recently issued guidance regarding protections for pregnant employees under federal law. The guidance, published on the EEOC’s website and linked below, states that some temporary impairments arising out of pregnancy can be considered “disabilities” under the Americans With Disabilities Act (“ADA”) which employers must reasonably accommodate.
The guidance also states that an employer’s failure to reasonably accommodate a pregnancy-related impairment could be a violation of the Pregnancy Discrimination Act (“PDA”), which is incorporated within Title VII of the Civil Rights Act (“Title VII”), to the extent the employer accommodates employees with similar limitations that are not pregnancy-related.
The EEOC’s guidance notes that pregnancy itself is not a disability covered by the ADA, but that impairments arising out of pregnancy are not necessarily excluded from coverage. The threshold inquiry is whether the impairment substantially limits a major life activity (such as standing, sitting, walking, lifting, etc.) or bodily functions or organs. However, in keeping with the mandate of the ADA Amendments Act of 2008, the EEOC’s guidance urges employers to focus on reasonable accommodations rather than on whether the impairment or condition might not be covered. Examples of reasonable accommodations listed by the guidance range from allowing the employee to take more frequent breaks, to keep a water bottle handy, or to use a stool, to temporarily reassigning the employee or altering the way the job is performed.
Of course, employers must be wary of imposing job restrictions on pregnant employees—in the absence of a request—if such restrictions could limit job opportunities. Title VII and the PDA have been interpreted to prohibit an employer from excluding an employee from a job or assignment based on pregnancy, even if the action is intended to protect the employee or her unborn child.
The timing of the EEOC’s guidance is somewhat controversial, in light of the fact that the U.S. Supreme Court recently agreed to hear a case that could decide the extent to which an employer must accommodate a pregnant employee. Nevertheless, the guidance signals clearly that the EEOC intends to make pregnancy-related job decisions a priority in its enforcement of Title VII, the PDA, and the ADA. As a result, employers should exercise caution and consult qualified employment law counsel on decisions involving pregnant employees.
The full Guidance is available here.