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10.08.2014

On July 14, 2014, the Equal Employment Opportunity Commission (“EEOC”) issued an update to its position on pregnancy discrimination in the workplace.  The newly released document, EEOC Enforcement Guidance on Pregnancy Discrimination and Related Issues, provides guidance regarding the Pregnancy Discrimination Act (“PDA”) and the Americans with Disabilities Act (“ADA”) as they apply to pregnant workers.  Most notably, the new Guidance suggests that even though a healthy pregnant employee is not considered “disabled” under the ADA, employers have an obligation to accommodate pregnant employees and treat them as they treat other employees similarly unable to perform their jobs.

Pregnancy-related medical conditions may or may not be considered a “disability” under the ADA.  A normal, uncomplicated pregnancy resulting in temporary disability does not fall within the ADA’s definition of disability.  However, the EEOC now takes the position that employees with pregnancy-related impairments such as pelvic inflammation, gestational diabetes, preeclampsia, and carpal tunnel syndrome, may be covered by the ADA.  Under the new Guidance, pregnancy-related impairments are “disabilities” under the ADA if they substantially limit one or more major life activities.  Major life activities include walking, standing, and lifting, as well as major bodily functions such as musculoskeletal, cardiovascular, and circulatory functions.

If an employee is determined to be disabled as a result of pregnancy-related conditions, her employer must comply with the ADA’s accommodation requirements.  That is, the employer must provide accommodations that would allow the disabled person to perform the essential functions of her job, unless accommodation would result in an undue hardship (significant difficulty or expense).  Examples of reasonable accommodations include: redistributing nonessential functions that a pregnant worker cannot perform, modifying workplace policies such as allowing a pregnant worker more frequent breaks, modifying a work schedule, purchasing or modifying equipment, allowing a pregnant worker placed on bed rest to work from home where feasible, modifying a work schedule, or temporarily reassigning an employee to a light duty position.  According to the new Guidance, if an employer normally provides light duty positions for other employees with temporary medical conditions, it must do the same for pregnant employees.

Even if the pregnant employee is not “disabled” as defined by the ADA, certain language in the Guidance suggests that all pregnant employees should be treated as if disabled.  Specifically, the Guidance states, “Title VII requires that individuals affected by pregnancy, childbirth, or related medical conditions be treated the same for all employment-related purposes as other persons no so affected but similar in their ability or inability to work.  Thus, 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.”  In other words, a pregnant employee requesting an accommodation should be treated the same as a disabled employee requesting an accommodation. 

The EEOC’s position that reasonable accommodation requirements apply to any pregnancy, even when no ADA disability is present, is a very broad interpretation of the protections afforded by the PDA.  This interpretation is not without its critics.  Only time will tell whether the EEOC’s position will hold up in court.  Although the Guidance is not controlling law, courts will likely afford it deference.  Also, the Guidance  will be relied upon by the EEOC if and when a pregnancy discrimination claim is filed.  Thus, employers should review their accommodation policies to ensure that pregnant employees are being treated in a manner comparable to disabled employees.  The EEOC’s “suggestions for best practices” include the need for employers to create a process by which they can adequately address accommodation requests made by pregnancy employees.  In addition to ensuring compliance with the requirements of the EEOC, providing a few of the suggested accommodations to pregnant employees may also aid in the retention of valuable employees during and after their pregnancy.

Jaime Wisegarver is an associate in the Litigation Section, where she handles a variety of civil and commercial matters, including insurance recovery litigation and counseling. For more information, please contact Jaime at (804) 771-5634 or jwisegarver@hf-law.com.

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