Tuesday, July 15, 2014

New EEOC Guidance on Pregnancy Discrimination and Accommodation

Yesterday, the EEOC issued a press release: EEOC Issues Updated Enforcement Guidance On Pregnancy Discrimination And Related Issues. We got three new documents:
To the surprise of no one, the EEOC has an extraordinarily broad interpretation of pregnant employees' rights and their employers' obligations. A few highlights:

An employer has a policy or practice of providing light duty, subject to availability, for any employee who cannot perform one or more job duties for up to 90 days due to injury, illness, or a condition that would be a disability under the ADA. An employee requests a light duty assignment for a 20-pound lifting restriction related to her pregnancy. The employer denies the light duty request, claiming that pregnancy itself does not constitute an injury, illness, or disability, and that the employee has not provided any evidence that the restriction is the result of a pregnancy-related impairment that constitutes a disability under the ADA. The employer has violated the PDA because the employer's policy treats pregnant employees differently from other employees similar in their ability or inability to work.
Hmmmm, this sounds familiar - oh right, Young v. UPS, the upcoming Supreme Court case on this issue. The guidance also addressed "forced leave":
An employer may not compel an employee to take leave because she is pregnant, as long as she is able to perform her job. Such an action violates Title VII even if the employer believes it is acting in the employee's best interest.
And, we also got some guidance on leave policies and disparate impact:
A policy that restricts leave might disproportionately impact pregnant women. For example, a 10-day ceiling on sick leave and a policy denying sick leave during the first year of employment have been found to disparately impact pregnant women.
Of course, those are just a few of the issues that I found interesting - employers should read the whole thing. The EEOC's interpretation of the PDA, ADA, and Title VII are not 100% binding (we may find that out sooner rather than later with Young v. UPS). That said, employers who ignore the EEOC's guidance face considerable risk of enforcement actions.

Image: EEOC Seal used in commentary on EEOC - not official use.

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