This month, the EEOC issued its controversial Enforcement Guidance: Pregnancy Discrimination and Related Issues. Of course, we all knew that pregnancy discrimination was unlawful, but did you know that according to the EEOC Guidance:
- Many short term pregnancy related conditions are considered disabilities under the ADAAA, and thereby implicating a duty to reasonably accommodate.
- Employers must offer temporary light duty assignments to pregnant employees with work restrictions if the employer provides the same accommodations to non-pregnant employees with similar work restrictions.
- Lactation is a covered pregnancy related medical condition under the ADAAA.
- An employer’s health insurance plan must cover prescription contraceptives on the same basis as prescription drug devices and services that are used to prevent the occurrence of medical conditions other than pregnancy. (At least the EEOC at least recognized the Hobby Lobby decision by stating that the Guidance does not address whether an employer may be exempt from Title VII’s requirements under the Religious Freedom Restoration Act or the First Amendment!)
- Parental leave (which is distinct from FMLA leave and medical leave associated with child birth and recovery) must be provided to similarly situated male and female employees on the same terms and conditions.
The EEOC Guidance is not law, but it is the enforcing agency’s non-binding interpretation of the law. Will courts agree with the EEOC’s broad interpretation of the Pregnancy Discrimination Act (“PDA”) and the ADA? We will know more after the Supreme Court hears the case of Young v. United Parcel Services, Inc. next term. In the UPS case, the Supreme Court agreed to review a Fourth Circuit decision finding that the PDA does not require employers to offer light duty to pregnant employees with work restrictions even if light duty is available for certain categories of non-pregnant employees.
Until we hear more from Those Who Wear Black Robes, be forewarned. Dealing with pregnant employees may be more complicated than you ever expected! And more costly!