What to pay attention to in new EEOC guidance

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By James Dale
Dolan Media Newswires

Recent enforcement guidance on the Pregnancy Discrimination Act represents the EEOC’s first effort to substantially update its position on this prohibited form of discrimination since 1983.

In the department’s July 14 guidance, employers will find important requirements that link pregnancy-related disabilities with duties imposed by the Americans with Disabilities Act.

Acknowledging that the definition of disability was significantly broadened in 2008, the guidance attempts to bridge that change in the law with pregnancy-related impairments including childbirth and infertility treatment.

Importantly, the guidance does not change the premise that pregnancy without complications or interactions is not a disability. A pregnant employee with limitations resulting from a pregnancy-related condition that constitutes a disability or from interactions of the pregnancy with an underlying impairment, however, may now be entitled to reasonable accommodation under the ADA.

Accommodations could extend to providing light duty if the employer provides light duty for employees who are not pregnant but who have other conditions that require light duty. Light duty cannot be limited by policy to only those employees who suffer an on-the-job injury.

In addition, an employer may be required to offer alternative assignments or additional leave as an accommodation. Redistributing marginal or nonessential job functions, altering how an essential or marginal function is performed, modifying workplace policies (such as allowing a pregnant worker more frequent breaks), or restructuring a work schedule to accommodate severe morning sickness must now be evaluated and can only be denied if the employer can demonstrate that such accommodations constitute an undue hardship.

Unlike more traditional regulations that undergo a public comment period, this guidance was approved by a majority of Commissioners – a practice that the U.S. Supreme Court will review in its next term. The guidance does not have the force and effect of law, but it will be applied by the federal agency charged with investigating complaints of pregnancy discrimination until a court holds differently.

Employers should immediately familiarize themselves with the guidance and offer training to first-line supervisors to recognize requests for reasonable accommodation, to respond promptly to all requests, and to avoid assuming that pregnancy-related impairments are not disabilities.

When in doubt, the employer should encourage employees to bring any questions to management’s immediate attention.

James Dale is a partner in the Boise, Idaho office of Stoel Rives. He advises and represents private employers on virtually every aspect of labor and employment law and litigation, including discrimination, harassment, wrongful termination, contract, and wage and hour class and collective actions.