By Jon Watson
On July 14, the EEOC issued “Enforcement Guidance on Pregnancy Discrimination and Related Issues” along with a Q&A document about its Guidance, and a Fact Sheet for Small Businesses. You can access the EEOC’s Guidance by clicking here. The Guidance explains how the ADA’s definition of “disability” might apply to workers with impairments related to pregnancy, and it notes that the PDA prohibits an employer from discriminating against an employee based on pregnancy, childbirth, or related medical conditions. Women affected by pregnancy, childbirth or related medical conditions must be treated the same as other persons similar in their ability or inability to work. However, the Guidance also asserts that the PDA covers discrimination based on past pregnancy and on a woman’s ability to become pregnant and it discusses health insurance coverage of pregnancy, childbirth, or related medical conditions, and the circumstances in which employers have to offer light duty work for pregnant employees.
The Guidance passed over two dissenting opinions. According to dissenting EEOC Commissioners Constance S. Barker and Victoria A. Lipnic, the Guidance offers an interpretation of the PDA for which there is no apparent legal basis. It remains to be seen what value the EEOC’s Guidance will have in pregnancy-related lawsuits and whether it will be considered to be an agency overreach by the courts.