By J. Denise Diskin, Teller & Associates, PLLC

On July 14, 2014, the EEOC released comprehensive updates to its Guidance on pregnancy discrimination and related issues.?? The update, Enforcement Guidance No. 915.003, is the first? ?the?? EEOC? ?has? ?issued? ?on? ?discrimination against pregnant workers since 1983, and incorporates significant? developments in the law during the last 30 years, including the application of the ADAAA to women with pregnancy-related disabilities. Some portions of the updated Guidance are familiar. ?For example, the fundamental protections afforded by the Pregnancy Discrimination Act (?PDA?) remain the same ? an employer may not discriminate nor allow harassment, disparate treatment, or disparate impact on the basis of pregnancy, ?childbirth, ?or? related ?medical conditions.

The updates to the Guidance, however, reflect the legal and social changes of the last 30 years.?? For example, the EEOC has clarified its position on the PDA?s protection of potential pregnancy (i.e., fertility treatment, use of contraception, and intent to become pregnant), past pregnancy, ?caregiving? responsibilities,? and lactation and breastfeeding. Of particular interest in light of the United States ?Supreme ?Court?s ?holding? in ?Burwell ?v. Hobby ?Lobby ?Stores, ?Inc., ?2014 ?WL? 2921709 (June 30, 2014)? ?(holding that employers with sincerely held religious objections need not offer their employees coverage for certain types of contraception), the EEOC asserts that a health insurance? ?plan? ?facially?? discriminates? ?against women on the basis of gender if it excludes prescription contraception but covers preventative care for medical conditions other than pregnancy (specifically countering an 8th Circuit decision, In re Union Pac. R.R. Employment Practices Litig., 479 F.3d 936 (8th? Cir. 2007) (holding that the exclusion of contraception coverage from an employee insurance plan was gender-neutral because the plan did not cover any contraception used by women or men).

The updated Guidance also addresses pregnancy coverage under the ADAAA, adopted in ?2008.???? In ?contrast ?to ?the ?old ?ADA, ?the ADAAA does not require that an impairment last a particular length of time to be considered substantially limiting, and defines the operation of bodily functions, including the reproductive system, as major life activities.?? Helpfully, the new Guidance provides examples of disabilities specific to pregnancy, and a list of reasonable accommodations which may arise from a pregnancy-related disability. The EEOC takes the position that under the PDA employers must treat pregnant employees the same as they treat others similarly in their ability to work, whether by modifying job tasks, reassigning the employee to alternate or light duty, or providing leave ? clearing up a series of lower-court decisions which allowed employers to restrict light duty for pregnant employees so long as pregnancy was not the only condition excluded.? ?Importantly, the United States Supreme Court will provide additional clarity in its 2014-2015 term, when it will hear Young v. UPS, 707 F.3d 437 (4th Cir. 2013), cert. granted, 81 USLW 3602 (U.S. July 1, 2014) (No. 12-1226), a PDA case centered on the question of whether an employer discriminated against a delivery driver who was required to go on unpaid maternity leave rather than take a less strenuous position as advised by her doctors. Finally, the Guidance addresses a range of other laws, including the FMLA, Executive Order? ?13152? ?(prohibiting?? discrimination? ?in federal? employment? based? on? parental? status), and the Affordable Care Act amendments to the FLSA, mandating break time for nursing mothers as? well? as? a protected ?location? to? express? milk. Additionally, the Guidance reminds employers of their obligation to comply with all laws, including state? and ?local ?laws, ?even ?when ?those? laws ?are more?? expansive?? than? ?the?? PDA,? ?as? ?Congress intended the PDA to be a ?floor beneath which pregnancy disability benefits may not drop ? not a ceiling above which they may not rise.?

The newly amended Guidance provides context for the complex and shifting interplay between the PDA, ADAAA, FMLA, and other statutes.?? ?While? the? EEOC?s ?updated ?Guidance does not hold the force of statute, it indicates the EEOC?s renewed attention to pregnancy discrimination.? ?As a practical matter, it also provides helpful authority for reaching resolution with employers whose view of the law may be out of date. ?The new Guidance can be found online at (last viewed July 23, 2014).