On July 14, 2014, the Equal Employment Opportunity Commission (EEOC) published its Guidance on the Pregnancy Discrimination Act of 1978 on its website. The Pregnancy Discrimination Act generally protects employees and applicants from discrimination based upon pregnancy, childbirth, and related medical conditions. The new EEOC Guidance sets forth several controversial positions that seem to seek to bypass both the legislative and judicial branches of government. However, it is questionable whether the EEOC's recent Guidance will have much influence over this growing area of discrimination law in the future.
The EEOC Guidance sets forth various examples where employers may have to make "reasonable accommodations" to pregnant workers. This is very controversial given the ongoing dispute among the courts regarding whether the PDA requires that an employer make "reasonable accommodations" for its pregnant employees. The Guidance also discusses the Americans with Disabilities Act (ADA) as it relates to providing reasonable accommodations to pregnant workers. Although pregnancy is not a disability per the ADA, following 2008 amendments to the ADA, the definition of disability under the ADA was significantly expanded to include medical conditions that are temporary in nature and of the type sometimes associated with pregnancy, e.g. preeclampsia. The EEOC Guidance therefore muddies the water for employers regarding whether they have to make "reasonable accommodations" to a pregnant employee (and to a lactating employee, according to the EEOC Guidance), to avoid running afoul of the PDA.
The EEOC Guidance further takes the position that an employer cannot force a pregnant worker to take leave. This section of the EEOC Guidance has caused many in the human resources industry to question the EEOC's motive and timing of the publication of this Guidance (which was published without allowing a period of public comment, and was issued over the dissent of two of the five EEOC commissioners). As the United States Supreme Court has recently agreed to hear the Young v. United Parcel Service, case (a Pregnancy Discrimination Act case brought by a UPS worker forced to take unpaid leave after she became pregnant), this issue should be addressed by the U.S. Supreme Court in its next term. In the past the U.S. Supreme Court has had no problem essentially ignoring the EEOC's positions regarding the application of discrimination laws, so it is questionable how useful this EEOC Guidance will be in the long run. In the short run, EEOC Guidance will likely raise more questions than provide answers in Pregnancy Discrimination Act cases.