EEOC updates guidelines on pregnancy discrimination

After more than 30 years, the U.S. Equal Employment Opportunity Commission has updated its guidelines on pregnancy discrimination.

The guidance clarifies many of the protections already provided by federal law but also goes into greater depth into such issues as how pregnancy-related impairments may be covered under the Americans with Disabilities Act.

It also provides some best practices to employers on avoiding unlawful discrimination against pregnant workers. Small businesses should take heed and review the guidelines.

"We see too many charges involving the most blatant discrimination against pregnant workers," says Peggy Mastroianni, legal counsel at the Washington-based EEOC, which enforces federal laws prohibiting employment discrimination.

The EEOC makes it clear in its guidance that an employer cannot discriminate against an employee based on her current pregnancy, but also past pregnancies and a woman's potential to become pregnant.

It also provides much more insight into how the ADA applies to pregnant workers, citing specific examples of pregnancy-related impairments, such as pregnancy-related sciatica and gestational diabetes. See www.eeoc.gov/laws/guidance/pregnancy_guidance.cfm for guidance.

Pregnancy itself isn't considered a disability, explains Mastroianni. Pregnancy-related impairments can be considered disabilities "if they substantially limit one or more major life activities or substantially limited major life activities in the past," according to the EEOC.

Subsequently, the guidance talks about making reasonable accommodations such as light duty positions for pregnant employees who may have work restrictions even if they don't qualify as disabled under federal law, explains Tara Daub, a partner at law firm Nixon Peabody in Jericho.

The EEOC suggests in its guidance employers develop, disseminate and enforce a strong policy based on the requirements of the Pregnancy Discrimination Act and ADA.

Among recommendations from experts:

"Don't provide pregnant employees with any less benefits or accommodations than you would other short-term disabled employees," notes Keith Gutstein, a partner at the law firm of Kaufman Dolowich Voluck LLP in Woodbury.

Make sure you apply your policies consistently and that any performance problems or disciplinary issues are well documented from the onset of employment, he adds.

This does add an extra burden on employers, says Gutstein, noting "it's one more body of guidance to have to review."

Still, Vicki Shabo, vice president at the National Partnership for Women & Families in Washington, touted the guidance, saying, "I think the clarity and specificity of the guidance will make it easier for employers to comply with the law and know what their obligations are."

The guidance doesn't just address a woman's protections but also specifies the requirement that parental leave (leave to bond with a child) be provided to men and women equally. It also distinguishes between pregnancy-related medical leave and parental leave.

Some experts like Daub, though, say the guidelines could be moot based on a case that will go before the Supreme Court in the fall involving a pregnant package delivery driver who was denied light duty work.

Chris Kuczynski, EEOC's acting associate legal counsel, says they've revised guidance in the past in response to Supreme Court decisions and will have to "wait and see."