Last week, my colleagues Peter Murphy and Harrison Smith, offered to write about the latest developments in the law regarding pregnancy. The post was scheduled to come out today, when, much to our surprise, the EEOC yesterday afternoon released long-awaited guidance on the subject.
So much for that post!
After a quick rewrite last night, here’s the very latest that includes both my comments and additional sourcing from Peter & Harrison….
Just a few short weeks ago, the U.S. Supreme Court announced that next term it will once again tackle an issue that raises strong feelings in many women (and men)–how pregnant women are treated in the workplace in comparison to non-pregnant employees.
As anyone interested in employment law knows, both Congress and the EEOC have focused extensively in recent years on getting employers to provide reasonable accommodations to disabled employees. Although what constitutes a reasonable accommodation remains a difficult determination in certain circumstances, the need to engage in an interactive dialogue with disabled employees over accommodations now is well established.
What to do with pregnant employees under the Pregnancy Discrimination Act, however, has been less clear. The EEOC yesterday chimed in with new guidance on the subject.
But let’s not get ahead of ourselves. First, the background.
The Federal Courts of Appeals are split on whether, and in what situations, an employer that provides work accommodations to non-pregnant, disabled employees with work limitations must also provide work accommodations to pregnant employees who are “similar in their ability or inability to work” as the non-pregnant employees.
In the case coming to the Supreme Court, Young v. United Parcel Service, the trial court and the Fourth Circuit held that the PDA does not require employers to provide accommodations to pregnant employees.
The Fifth, Seventh and Eighth Circuits agree with the Fourth Circuit, while other courts, such as the Tenth Circuit and the Sixth Circuit, hold otherwise.
Since 2012, the EEOC has been kicking around the subject of revising its guidelines on the subject. By a 3-2 vote, the EEOC decided that it could not wait until the Supreme Court gave birth to a clarifying decision, and so yesterday the EEOC issued its final pregnancy discrimination guidelines.
Continue Reading EEOC Declines a “Pregnant” Pause; New Guidance Awaits Supreme Court Decision