Wednesday, July 1, 2015

EEOC updates pregnancy discrimination guidance to embrace accommodations


In the wake of the Supreme Court’s decision in Young v. UPS, the EEOC has updated its administrative guidance on pregnancy discrimination. The updated guidance includes Enforcement Guidance on Pregnancy Discrimination And Related Issues, a Q&A, and a Fact Sheet for Small Businesses.

The most notable inclusion is updated guidance on an employer’s obligation to provide reasonable accommodation to a pregnant worker.
From the Q&A:
May an employer impose greater restrictions on pregnancy-related medical leave than on other medical leave? 
No. Under the PDA, an employer must allow women with physical limitations resulting from pregnancy to take leave on the same terms and conditions as others who are similar in their ability or inability to work. Thus, an employer:
  • may not fire a pregnant employee for being absent if her absence is covered by the employer's sick leave policy;
  • may not require employees limited by pregnancy or related medical conditions to first exhaust their sick leave before using other types of accrued leave if it does not impose the same requirements on employees who seek leave for other medical conditions;
  • may not impose a shorter maximum period for pregnancy-related leave than for other types of medical or short-term disability leave; and
  • must allow an employee who is temporarily disabled due to pregnancy to take leave without pay to the same extent that other employees who are similar in their ability or inability to work are allowed to do so.
Must an employer provide a reasonable accommodation to a worker with a pregnancy- related impairment who requests one? 

Yes, if the accommodation is necessary because of a pregnancy-related impairment that substantially limits a major life activity. An employer may only deny a needed reasonable accommodation to an employee with a disability who has asked for one if it would result in an undue hardship. An undue hardship is defined as an action requiring significant difficulty or expense. 

Examples of reasonable accommodations that may be necessary for someone whose pregnancy-related impairment is a disability include:
  • Redistributing marginal or nonessential functions (for example, occasional lifting) that a pregnant worker cannot perform, or altering how an essential or marginal function is performed;
  • Modifying workplace policies, such as allowing a pregnant worker more frequent breaks or allowing her to keep a water bottle at a workstation even though keeping drinks at workstations is generally prohibited;
  • Modifying a work schedule so that someone who experiences severe morning sickness can arrive later than her usual start time and leave later to make up the time;
  • Allowing a pregnant worker placed on bed rest to telework where feasible;
  • Granting leave in addition to what an employer would normally provide under a sick leave policy;
  • Purchasing or modifying equipment, such as a stool for a pregnant employee who needs to sit while performing job tasks typically performed while standing; and
  • Temporarily reassigning an employee to a light duty position.



As the new guidance makes abundantly clear, while an employer cannot compel a pregnant employee to take an accommodation (such as a leave) if she is able to perform her job, it must allow women with physical limitations resulting from pregnancy to take leave (or other accommodations) on the same terms and conditions as others who are similar in their ability or inability to work. Thus, the EEOC has confirmed, as I’ve consistently said (here and here, for example), that if employers grant employees accommodations under the ADA, Title VII will almost certainly compel them to do the same for pregnant employees.

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