As we reported on Monday, the EEOC has issued Enforcement Guidance on Pregnancy Discrimination and Related Issues.  The Guidance largely sets forth well-established interpretations of the Pregnancy Discrimination Act (“PDA”) and the interplay with the Americans with Disabilities Act, the Family and Medical Leave Act, and Title VII.  We’ll address some more of the specifics in future posts.

There are two areas of the guidance which are likely going to be struck down or modified by the courts:

1) That employers must reasonably accommodate a pregnant employee with leave or light duty even where the employee does not have a pregnancy-related medical condition that would count as a disability; and

2) That an employer who refuses to provide contraception coverage could still be discriminating against women where it provides coverage for other preventative care that is provided to men such as vaccines, blood pressure medication, etc.

The PDA requires an employer to offer benefits to pregnant workers on the same terms that it offers benefits to other workers “similar in their ability or inability to work.”  In analyzing this, the EEOC  notes that an employer cannot deny a non-disabled pregnant worker light duty where it provides light duty to employees injured at work or who are disabled under the ADA.  This part of the Guidance is probably the most controversial and may conflict with a future Supreme Court ruling.

The extent to which an employer must accommodate a pregnant, non-disabled employee has recently been certified to the Supreme Court in Young v. United Parcel Service.  We will keep you updated when the Supreme Court rules.   In the meantime, employers with light duty policies that only apply to persons injured at work should be aware that the Guidance provided by the EEOC is directly at odds with the law in most jurisdictions.  This position is also at odds with the EEOC’s own guidance on Workers’ Compensation and the ADA issued in 2000, which is under review by the EEOC but still valid guidance at this point.   Employers who wish to continue or establish Workers’ Compensation light duty policies are encouraged to consult with counsel about the risks in light of the fact that this seems to be an enforcement priority for the EEOC.

With regard to the contraception issue, the EEOC acknowledged the recent Supreme Court decision in Burwell v. Hobby Lobby Stores, Inc., which held that private, closely held corporations could refuse to provide contraception coverage if it violated their religious beliefs.  The EEOC, however, reiterated its position that all other employers may be liable for violating Title VII if they deny contraceptive coverage.

Although we think these parts of the Guidance may be modified or deemed unenforceable, employers should tread lightly in directly going against the EEOC’s guidance.  Even though the EEOC may be wrong, it may not stop them from filing charges and investigating employers with Workers’ Compensation light duty programs and who refuse to provide contraception coverage.