The Equal Employment Opportunity Commission (“EEOC”) recently issued an enforcement guidance relating to the treatment of pregnant employees (the “Guidance”). The Guidance reaffirms the EEOC’s position that, although pregnancy itself is not a disability under the Americans with Disabilities Act (“ADA”), many temporary pregnancy-related impairments may qualify as disabilities. Temporary impairments that may qualify as disabilities include, for example, carpel tunnel syndrome, gestational diabetes, preeclampsia, and even nausea resulting in severe dehydration. Per the EEOC, therefore, employers may be required to offer reasonable accommodations to employees with such pregnancy-related impairments.
The Guidance also seeks to expand the reach of current law by taking the view that the Pregnancy Discrimination Act (“PDA”) compels employers to provide reasonable accommodations for pregnant employees who are not disabled where non-pregnant employees similar in their ability or inability to work—including employees with disabilities under the ADA—are provided reasonable accommodations. The Guidance states that non-disabled pregnant employees may be entitled to “workplace adjustments similar to accommodations provided to individuals with disabilities,” such as lifting restrictions and permission to take more frequent breaks, keep a water bottle at a workstation, and use a stool to carry out job functions.
Notably, two EEOC Commissioners dissented from the Guidance and argued that this new interpretation of the PDA is inconsistent with congressional intent and existing case law. The dissenting Commissioners also question the timing of the publication of the Guidance, given that the United States Supreme Court is expected to decide next term whether an employer is required to provide non-disabled pregnant workers with workplace adjustments similar to accommodations provided to individuals with ADA-covered disabilities, in Young v. United Parcel Service, Inc.
In Young, a female UPS driver requested light duty after becoming pregnant. UPS denied the driver’s request pursuant to a policy that limited light duty to employees who had been injured the job, lost their U.S. Department of Transportation certification, or were disabled under the ADA. The driver sued UPS alleging, among other things, violation of the PDA. The trial court granted summary judgment in favor of UPS and the United States Court of Appeals for the Fourth Circuit unanimously affirmed. The Fourth Circuit held, directly contrary to the position taken by the EEOC in the Guidance, that UPS’ “pregnancy-blind policy” met the requirements of the PDA.
In sum, the Supreme Court’s upcoming decision in Young may well invalidate the Guidance’s expansive interpretation of the PDA. In the meantime, employers should recognize the EEOC’s renewed focus on protecting pregnant employees and review their pregnancy accommodation policies for compliance with established law.