By Jack Tuckner

On July 14, 2014, the Equal Employment Opportunity Commission (EEOC) finally issued its long-awaited Enforcement Guidance: Pregnancy Discrimination and Related Issues (“the Guidance”). The Guidance is pro-employee in that it contains substantive provisions that impose requirements on employers beyond those required by the current federal pregnancy laws.

The Guidance was approved along party lines, of course, with the two Republican Commissioners, Constance Barker and Victoria Lipnic, voting against the Guidance (quelle surprise!) and the three Democratic Commissioners, Chair Jacqueline Berrien, Vice Chair Jenny Yang, and Commissioner Chai Feldblum, voting in favor of these progressive changes.

The EEOC justified its decision to issue the Guidance by explaining that, since the enactment of the Pregnancy Discrimination Act (PDA) in 1978, the number of charges alleging pregnancy discrimination has increased substantially. The travesty and injustice of the current federal law as it applies to pregnant workers is that the PDA does not require employers to offer light duty to pregnant employees who have work restrictions even if light duty is available for certain non-pregnant employees, so for example, under US law, a pregnant cashier, for example, whose obstetrician recommends that she occasionally sit down to take the stress off of her swollen ankles and feet, is not entitled to a chair, or any reasonable accommodation of her pregnancy related medical challenges or temporary disabilities. Too bad, Sister–use contraceptives next time–if your health insurance still covers them.

This would all be corrected if Congress would just pass the pending Pregnant Workers’ Fairness Act bill (just like the PWFA we now have in NYC), as the federal PWFA would amend the PDA to require employers to grant reasonable accommodations for pregnant women, an reasonable and civilized obligation that the Guidance presumes already exists in the PDA, which is great news for women—we’ll take our victories where we find them.

The Guidance lays out the requirements of the PDA and then evaluates the applicability of the Americans with Disabilities Act (ADA) to pregnancy. The PDA contains two fundamental requirements: (1) employers may not discriminate against employees on the basis of pregnancy, childbirth, or related medical conditions; and (2) women affected by pregnancy, childbirth or related medical conditions must be treated the same as “other persons not so affected but similar in their ability or inability to work.” The EEOC’s new Guidance interprets the 2nd prong as to require a reasonable accommodation of pregnant workers who many need some temporary assistance in order to continue performing the essential functions of their job, as the ADA requires for all other workers with bona fide disabilities. Makes sense, doesn’t it?

Much of the Guidance lays out the EEOC position on what types of actions are prohibited or required by the PDA, including that (1) employers can’t take an adverse employment action (firing or demoting, etc.) that is motivated by a woman’s past or present pregnancy, childbirth or related medical condition, or by a woman’s fertility or childbearing capacity; (2) employers cannot take an adverse employment action against a pregnant employee due to concern about her health and safety if the employee is able to perform her job; (3) harassment based on pregnancy is prohibited; and, (4) parental leave (not due to pregnancy or childbirth) must be equally available to mothers and fathers. That’s already the law in every other major country on earth save for ours.

But the best part of the Guidance is that it reflects the EEOC’s broad, employee-oriented interpretation of the PDA’s “similar in their ability or inability to work” language. One example concerns the availability of so-called light-duty positions. The EEOC Guidance states that an employer may not follow a policy that provides light duty only to employees who have been injured on the job, because that policy would treat a pregnant employee who was similar in her ability/inability to work differently because of the source of her limitations, and that discriminates against women, the only gender capable of contending with pregnancy-related physical and medical challenges.

And contrary to the recent regressive and sexist Supreme Court decision in Burwell v. Hobby Lobby Stores, the Guidance provides that the Civil Rights Act of 1964 (aka Title VII) requires that an employer’s health insurance plan must cover prescription contraceptives on the same basis as other prescription medication that is used for preventive care. The EEOC doesn’t trump Supreme Court decisional law, but it’s still heartening to see the federal agency charged with preventing pregnancy discrimination coming out four square in support of working women, instead of on the side of corporate “persons,” as the 5 Catholic men did (and always do) who decided the appallingly sexist Hobby Lobby case.

The Guidance also recognizes lactation as a pregnancy-related medical condition, and states that an employer may not treat lactating employees less favorably than non-lactating employees and must provide lactating employees the same flexibility as it provides other employees with similarly limiting medical conditions (such as regarding schedule changes or the use of sick leave for routine medical appointments).

Legally speaking, the most important section of the Guidance is its addressing the interplay between the PDA and the ADA, as itt has long been the case that pregnancy itself is not considered a disability under the ADA. Yet, the EEOC notes that the ADA Amendments Act of 2008 (ADAAA) broadened the scope of the definition of disability, and made it clear that temporary impairments may constitute disabilities, so the Guidance reasons that pregnancy-related impairments therefore can be disabilities. As examples, the Guidance references pregnancy-related sciatica, gestational diabetes and pregnancy-related anemia, among other conditions. Aren’t those “disabilities” worthy of “reasonable accommodation” under the law? Or should these be excluded because it’s happening just to women, who “choose” to get pregnant, after all.

The Guidance suggests that a pregnant employee is entitled to a reasonable accommodation even for a routine pregnancy that is not a disability, if the pregnancy causes a work restriction. So, the EEOC takes the position that if a pregnant employee has a restriction on lifting heavy items because of her pregnancy, she should be compared to an individual who has a lifting restriction due to a back-related disability, and should be similarly entitled to a reasonable accommodation unless it causes undue hardship to the employer. Again, seems perfectly reasonable and what we’d expect for ourselves or our pregnant loved ones, but don’t expect Republicans to agree.

The EEOC’s Guidance ends with a list of best practices, which go beyond federal non-discrimination requirements and which include the following:
• Have a strong policy that outlines the requirements of the PDA and the ADA and which addresses the types of conduct that could constitute unlawful discrimination based on pregnancy, childbirth and related medical conditions. The policy should also provide multiple avenues of complaint.
• “Train managers and employees regularly about their rights and responsibilities” under the PDA.
• Respond to and investigate complaints of pregnancy discrimination promptly and take corrective action, if appropriate.
• Make hiring and other employment decisions without regard to assumptions about women affected by pregnancy, childbirth or related medical conditions.
• Do not ask questions about an applicant’s or employee’s pregnancy status or childbearing plans.
• Provide parental leave after the birth of a child to similarly situated men and women on the same terms.
• Incorporate pregnancy-related harassment into the company’s anti-harassment policy.
• Review any light-duty policies to ensure that they “provide pregnant employees access to light duty that is equal to that provided to people with similar limitations on their ability to work.”
• “State explicitly in any written reasonable accommodation policy that reasonable accommodations may be available to individuals with temporary impairments, including impairments related to pregnancy.”

While the Guidance is not law, it’s still a big step in the right direction. And when the EEOC receives a charge of pregnancy discrimination it will enforce the provisions in its Guidance and expect employers to comply with it, so it still gives employees negotiating leverage now that the EEOC is more fully and openly on the side of the angels, and that’s us, btw, not the monolithic misogynistic corporate person (given personhood by the same reactionary SCOTUS 5 who gave us the appalling and in defensible Hobby Lobby case.

Don’t hold your breathe waiting for this Chamber of Commerce-owned Republican Congress to pass the Pregnant Workers Fairness Act, but in the meantime, the EEOC’s righteous new pregnancy discrimination framework still puts pressure on employers to do the right thing and accommodate its pregnant female employees. It’s another weapon for the firefight.