EEOC Issues Pregnancy Discrimination Enforcement Guidance

The guidance was issued over steep objection from two commission members and raises questions about its statutory authority and timing.

The Equal Employment Opportunity Commission (EEOC) issued new enforcement guidance (the Guidance) on July 14 relating to pregnancy in the workplace.1 Like all EEOC guidelines, the new Guidance does not have the force of law and is entitled to deference from courts only "to the extent of its persuasive power."2 In this case, the Guidance is controversial, particularly for its view that employers must modify job requirements for pregnant and lactating workers, even if the pregnancy is normal and the employee is healthy and not disabled under the meaning of either the Americans with Disabilities Act (ADA) or state law. Many critics believe that the Guidance is not grounded in statutory authority, including two of the five EEOC commissioners who dissented. Moreover, the Guidance's timing raises questions, with the U.S. Supreme Court set to review Young v. United Parcel Service, Inc., in which the U.S. Court of Appeals for the Fourth Circuit held that the Pregnancy Discrimination Act (PDA) does not mandate the kind of accommodations that the EEOC now claims are required.3 Given the Supreme Court's decision to hear the Young matter, many believe the EEOC's Guidance is premature and could, in essence, be overruled by the high court.

Background

The Young case involves the claims of a female United Parcel Service (UPS) driver, Peggy Young, who requested light duty after becoming pregnant. UPS drivers must be able to lift up to 70 pounds, but, as soon as she became pregnant, Young brought a note from her doctor, stating that she would not be able to lift more than 20 pounds for the first half of her pregnancy and no more than 10 pounds for the second half. UPS had a policy of limiting light duty to three categories of employees: (1) those who had been injured on the job, as required by the applicable collective bargaining agreement (CBA), (2) those who had lost their U.S. Department of Transportation (DOT) certification—also required by the applicable CBA, and (3) those who were disabled under the ADA. Young did not fit into any of these categories. As such, she was denied light duty and was instead accommodated with an extended leave of absence. Young returned to work after giving birth.

Notwithstanding UPS's decision to grant Young extra leave (far in excess of her entitlement under the Family and Medical Leave Act), she sued UPS, alleging discrimination on the basis of her race, gender discrimination in violation of Title VII, discrimination on the basis of pregnancy in violation of the PDA, and discrimination on the basis of a...