On July 14, 2014, the Equal Employment Opportunity Commission (“EEOC”) issued an enforcement guidance on the Pregnancy Discrimination Act (“PDA”) – the first guidance the commission has issued on the subject since 1983. In this guidance, the EEOC interprets employers’ obligations under the PDA in new ways, and it may have a significant impact on how employers deal with pregnant workers.
The PDA was enacted in 1978 as an amendment to Title VII. Rather than create a brand new protected category of employee, the PDA confirmed that pregnancy discrimination is a brand of sex discrimination. In the years since the law was passed, pregnancy discrimination claims have risen steadily. In its guidance, the EEOC reports that it received 5,342 charges of pregnancy discrimination in fiscal year 2013. With that number expected to continue to increase in the coming years, the EEOC has decided to pay special attention to its obligation to enforce the PDA.
According to the guidance, it is now the EEOC’s position that “an employer is obligated to treat a pregnant employee temporarily unable to perform the functions of her job the same as it treats other employees similarly unable to perform their jobs, whether by providing modified tasks, alternative assignments, leave, or fringe benefits.” For example, if an employee has a lifting restriction as a result of a workplace injury and the employer accommodates that employee with a light duty assignment, that employer must also accommodate a pregnant employee with a similar lifting restriction with a light duty assignment. Essentially, the EEOC has read into the PDA an affirmative obligation to accommodate pregnant employees in situations where the limitations on the pregnant employee’s ability to do her job are similar to the limitations on another employee who is “disabled” under the ADA. This is so even if the pregnant worker is not considered “disabled” under the ADA.
The guidance is not controlling law, but courts will afford it an amount of deference. As the Seventh Circuit observed: “[A]s the agency charged with enforcing Title VII, the [EEOC] has experience and familiarity in this field which bestow upon its judgment an added persuasive force.” Kyles v. J.K. Guardian Sec. Servs., 222 F.3d 289, 299 (7th Cir. 2000). Courts have ignored EEOC guidance before, but until the Supreme Court or a circuit court does so in this case, employers would be wise to pay heed to the EEOC’s interpretation.
With this in mind, employers should revisit their accommodation policies – especially those relating to light duty and leave – to ensure pregnant employees are being treated on par with disabled employees with similar job restrictions. The courts may or may not follow the EEOC’s interpretation, but until we know for sure, employers should proceed with caution in dealing with pregnant employees.
For more information about this or any related legal matter, please contact any member of the KDDK Labor & Employment Law Practice Team.
