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Do Employers Have to Give Pregnant Women Accommodations? EEOC Issues New Guidance and SCOTUS Takes Up New Case

Pregnant women working in New York City have a right to receive a workplace accommodation, such as more frequent bathroom breaks, rest breaks for workers who stand, help with manual labor, or a period of recovery from childbirth.

But pregnant women in the rest of the state – and most of the country – aren’t so lucky. Hopefully, that’s changing. The U.S. Equal Employment Opportunity Commission (“EEOC”) just issued a Guidance that’s a step in the right direction. While the guidance isn’t new law, it is significant and has persuasive power in court.

Why is this issue so complicated? Why aren’t pregnant women protected under current federal law? Because there’s some confusion in the courts as to whether pregnancy is always a “disability” under the ADA, and if not, whether the Pregnancy Discrimination Act requires employers to make actual accommodations to pregnant women, rather than just refrain from firing them.

In Young v. UPS, the Fourth Circuit Court of Appeals considered UPS’s policy of allowing people with disabilities to receive “light duty” accommodations. But UPS did not give the same accommodations to pregnant women who were temporarily unable to lift heavy items. The court decided that this policy was entirely legal. It didn’t discriminate against women who were pregnant – in fact, it treated all non-disabled people the same, pregnant or not pregnant, and that this is all the Pregnancy Discrimination Act requires.

The case has been appealed to the Supreme Court, which will decide it in the next term. The question is: is it discriminatory to treat pregnancy differently from other conditions that have the same requirements (like, heavy lifting restrictions).

The EEOC issued its Guidance two weeks after the Supreme Court agreed to hear the case. The timing is interesting – is the EEOC trying to influence the Court? Who can blame them? The EEOC is, after all, the federal agency charged with enforcing and interpreting the Pregnancy Discrimination Act, and if there was ever a time to make clear what the agency thinks, that time is now.

In its Guidance, the EEOC left no doubt that it reads the PDA to mean that an employer must accommodate a pregnant employee in the same way it accommodates non-pregnant employees with the same work limitations. That means, according to the EEOC, Young should be reversed because the PDA requires UPS to give Peggy Young the same kind of  light duty works that it gives non-pregnant employees injured on the job or considered disabled.

The EEOC Guidance also clarified that many pregnancy-related conditions are considered “disabilities” under the ADA, especially after Congress amended the ADA in 2008 to expand the definition of “disability.” The EEOC Guidance lists any number of pregnancy-related conditions that might require some form of accommodation or modified work arrangement, including sciatica, cardiovascular issues, post-cesarean complications, swollen legs that limit walking ability, post-partum depression, and even morning sickness.

The EEOC Guidance is a great sign for pregnant women. The spate of recent anti-worker rulings coming from the Court means we shouldn’t expect much help from them. Despite the literal words of the statute saying pregnant women must be treated like everyone else, the Court is likely to rubber stamp company policies that treat pregnant women differently from other workers with similar work restrictions. But the EEOC gives us a path forward anyway – we can still push for accommodations for pregnant women under the ADA.

And that’s important. Because without accommodations – without some recognition that being pregnant affects women’s bodies in profound ways that may affect their ability to work in the exact same manner as non-pregnant people – women will continue to be pushed out of the workforce, or to simply never even try to make it in careers that won’t accommodate slight modifications for an aching back or morning sickness.