On July 14, 2014, the Equal Employment Opportunity Commission (“EEOC”) issued its controversial Guidance on Pregnancy Discrimination and Related Issues, discussing pregnant employees’ rights under the Pregnancy Discrimination Act (“PDA”), Family Medical Leave Act and Americans with Disabilities Act (“ADA”). Although the Guidance is not legal precedent and compliance with it is not mandatory, it provides a useful roadmap of the issues the EEOC views as important (and thus is more likely to litigate), along with a preview of its position on these issues, allowing employers to possibly avoid liability.

The bulk of the controversy centers on the EEOC’s guidance on what accommodations should be provided to pregnant employees. Since the ADA Amendment Act’s significant broadening of the definition of “disability,” employers now provide pregnant employees with disabilities reasonable accommodations pursuant to the ADA. The new Guidance, however, requires employers to provide pregnant employees—without disabilities—the same accommodations provided to workers who are similarly limited. This means, for example, if an employer offers employees receiving workers’ compensation benefits light duty, it must offer light duty to pregnant employees with similar restrictions. This mandate is even more controversial given that the U.S. Supreme Court is about to hear Young v. United Parcel Service, which raises the question of what accommodations, if any, are required by the PDA in this precise situation.

Employers should carefully review the EEOC’s guidance as well as its Questions & Answers guide; which can be found here. Below is a summary of the more significant and/or controversial pronouncements in the Guidance:

• The PDA prohibits discrimination based on current, past, potential or intended pregnancy, as well as medical conditions related to pregnancy or childbirth.
• Employment decisions based on a female employee’s use of contraception can constitute unlawful discrimination. 
• Title VII requires employers to offer health insurance that provides prescription contraceptives (which directly contradicts the Supreme Court’s recent ruling in Burwell v. Hobby Lobby Stores, Inc., et al., 134 S. Ct. 2751, 2785, 2014 WL 2921709 (June 30, 2014)).
• If a pregnant employee has a related health condition that constitutes a disability under the ADA, possible reasonable accommodations could include redistributing the marginal job functions that the employee cannot perform, altering how an essential or marginal job function is performed (e.g., modify standing, climbing, lifting or bending requirements), modifying workplace policies (allowing water breaks), purchasing or modifying equipment and devices (providing a stool for sitting), modifying work schedules and granting leave and temporary assignment to a light-duty position.
• Pregnant employees with disabilities may be entitled to leave beyond what is available in her employer’s policies pursuant to the ADA.
• An employer may not force a pregnant employee to take leave out of concerns about the risks her job poses to her unborn child, but must instead allow her to make that decision.
• Lactation is a pregnancy-related condition and treating lactating employees differently can raise an inference of unlawful discrimination. Additionally, employers must provide a breast-feeding employee the same freedom to address her lactation needs as the employer provides a co-worker with similarly limiting medical conditions (meaning if an employee with non-incapacitating medical conditions can change his or her schedule for appointments or breaks, then lactating employees should be able to do the same).
• Discrimination against workers with caregiving responsibilities may be actionable when an employer discriminates based on sex or another characteristic protected by federal law.
• If an employer provides leave for a new mother to bond with her child, the employer must provide the same leave policy to new fathers.

Given the EEOC’s aggressive stance on the PDA, employers should seriously consider and evaluate requests made by pregnant employees, as well as update its policies and training materials to ensure that management consult with Human Resources or Legal on these requests. However, given the controversial nature of this Guidance, employers should continue to monitor this area of the law, particularly the Supreme Court’s decision in Young on accommodations for pregnant employees without disabilities.