Most people would probably agree that an employee who requests “light duty” while eight-months pregnant should be entitled to that slight accommodation. “Light duty” generally refers to work that is physically less demanding than the employee’s normal job duties; for example, “light duty” could mean not pushing or lifting over 20 pounds during a certain period. Unfortunately, until recently, it wasn’t clear that such a worker might be entitled to these kinds of accommodations under the law.
Even though women are an increasing portion of the workforce and mothers are the sole or primary breadwinner in four-in-ten households with children, pregnant employees continue to face discrimination and denial of accommodations. A recent study shows that one-quarter million women per year are denied a pregnancy accommodation. It is therefore unsurprising that pregnancy discrimination charges field with the EEOC have been steadily on the rise.
The EEOC identified pregnancy accommodation as an “emerging and developing issue” in its 2013-2016 Strategic Enforcement Plan. In particular, the EEOC was set to focus on the relationship between protection against discrimination under the Pregnancy Discrimination Act (the “PDA”), which is part of Title VII, and the Americans with Disabilities Act Amendments Act of 2008 (the “ADAAA”), which requires that employers provide “reasonable accommodations” to employees with disabilities. Before the 2008 amendments, pregnancy was not considered an impairment or disability within the meaning of the ADA. As a result, pregnant employees were not entitled to reasonable accommodations for medical issues associated with pregnancy (think pregnancy-related sciatica, gestational diabetes, etc.). The ADAAA was enacted specifically to expand the definition of pregnancy, and post-ADAAA regulations state: “disabilities caused or contributed by pregnancy . . . for all job-related purposes, shall be treated the same as disabilities caused by or contributed to by other medical conditions.” Despite the expansion of ADAAA coverage, courts have continued to apply pre-ADAAA case law, resulting in the denial of reasonable accommodations to pregnant employees.
Which is why the EEOC’s recent guidance on reasonable accommodations for pregnancy workers is so important. The guidance reiterates that, under the PDA, employers are prohibited from discriminating against a female employee because she either is or intends to become pregnant, and an employer may not inquire during hiring about whether an applicant intends to become pregnant. The guidance also makes clear that, pursuant to the PDA and ADAAA:
- Employers are prohibited from requiring a female employee to take leave because she is pregnant as long as she is able to perform her job.
- “An employer is required under Title VII to treat an employee temporarily unable to perform the functions of her job because of her pregnancy-related condition in the same way it treats other employees similar in their ability or inability to work, whether by providing modified tasks, alternative assignments, or fringe benefits such as disability leave and leave without pay.”
Some corporations and business advocates see this last point as controversial because it directly addresses previous decisions that held employers weren’t required to make accommodations – decisions like Young v. United Parcel Serv., which is headed to the Supreme Court next term.
However controversial it might seem to employers, it is vital for working women. As Professor Joan Williams, of the U.C. Hastings Center for WorkLife Law, said: “This is a significant victory. Too often today pregnant workers lose their jobs when employers deny them accommodations that are regularly granted to other employees. What we did was went in an said, ‘Look, these women are currently entitled to accommodations under law.’”