Varied response to EEOC’s new pregnancy guidance

Released this week, the Equal Employment Opportunity Commission’s new enforcement guidance on how employers are to accommodate their pregnant workforce is creating mixed emotions from legal experts in the employment space.

The enforcement agency said July 14 that its new rules meld together provisions of the Pregnancy Discrimination Act of 1978 and the Americans with Disabilities Act, as it pertains to pregnant workers. The new guidance comes as a question was presented to the U.S. Supreme Court in May, in Peggy Young v. United Parcel Service, Inc., asking whether an employer should provide the same work limitations to pregnant workers as those provided to its non-pregnant workforce. The high court is expected to hear the case.

Figures offered at the White House Summit on Working Families highlight that women make up nearly half of the American workforce. That’s a vital piece in the economic security of employees and success of American employers, according to President Barack Obama, who said last month that pregnancy accommodation is a must.

Also See: Supreme Court backs Hobby Lobby's religious objection to contraception use

“It means treating pregnant workers fairly, because too many are forced to choose between their health and their job,” the President said at the summit. “Right now, if you’re pregnant you could potentially get fired for taking too many bathroom breaks – clearly from a boss who has never been pregnant – or forced unpaid leave.”

He also called on Congress to pass the Pregnant Workers Fairness Act “without delay.”

Meanwhile, employers are faced with dealing with EEOC’s new guidance, which in essence expands the breadth of “disability” as it relates to pregnancy under the ADA. It comes as no surprise as the EEOC listed in its Strategic Plan for Fiscal Years 2012-2016 that it would root out pregnancy-related discrimination. However, Emily Martin, vice president and general counsel of the National Women’s Law Center, predicts that the agency’s guidelines offer “clarity to employers and employees.”

“In many circumstances, pregnant workers who have some limitation in their ability work because of pregnancy have a legal right to the accommodation,” Martin tells EBN. “And that is a place where clarity has been needed because a lot of employers have been pushing pregnant workers onto unpaid leave – or firing them entirely – if they need some sort of temporary change of the job for the pregnancy.”

Also See: Why employers need ADA-compliant policies

For employers that have traditionally incorporated distinctions for pregnant workers and other medical situations, such as job-related injuries, Randy Coffey, a partner in Fisher & Phillips’ Kansas City, Mo. office, says they will be caught between a rock and a hard place.  

“I think it creates a number of conundrums for employers,” notes Coffey, especially those that have “historically drawn distinctions between employees who have on-the-job injuries and those that have some injury or illnesses that are not job-related, for purposes of providing light duty. This [EEOC] guidance now says that that’s not permissible because someone with a work-related injury would be an appropriate comparison to someone who is pregnant and has limitations.”

Coffey, who served as management chair of the American Bar Association’s Equal Employment Opportunity Committee, explains that employers need to act in order to protect themselves from a potential EEOC investigation.

“Employers may now be in a position where they either have to comply with the EEOC’s outlook on these issues or willing to spend a lot of money to go to court and defend it,” Coffey tells EBN.

But until the initial concern over the EEOC’s guidance clears, Martin reiterates that this can also be a good thing for employers.

“I think the guidance that EEOC has been given on this issue is really critical to both economic security and health of workers. I think it is also helpful to employers too to have a clearer voice from the enforcing agency on what the law means,” she says.

While some employers offered “knee-jerk” reactions to exclude accommodations for their pregnant population, Martin adds that other employers may already provide policies that oblige to EEOC’s fresh new take in order to capitalize on a happier employee base that is trained.

“Some employers I think this [the EEOC’s guidance] will be completely consistent with their principles of what they’ve been doing,” explains Martin. “I think with other employers, unfortunately, there has been a culture of ‘no’ if I a pregnant worker needs a change.”