Add pregnant women to the list of employees with conditions that may qualify for workplace accommodations.

That's the message the Equal Employment Opportunity Commission (EEOC) is sending to employers in its draft Strategic Enforcement Plan for 2012-2016. Among the “emerging issues” the commission plans to target is “accommodating pregnancy when women have been forced onto unpaid leave after being denied accommodations routinely provided to similarly situated employees.”

Congress outlawed discrimination in employment decisions based on pregnancy in 1978 by amending Title VII to include the Pregnancy Discrimination Act (PDA), but employers generally haven't been required to provide accommodations for pregnant women unless they provide them for “similarly situated employees” with temporary disabilities. Because the Americans With Disabilities Act (ADA) specifically excludes “ordinary” pregnancy from the list of conditions for which employers must provide reasonable accommodations and court decisions have narrowly interpreted “similarly situated,” it has been difficult for plaintiffs in pregnancy accommodation cases to prevail. 

But recent EEOC statements and the inclusion of pregnancy accommodation in its draft strategic plan suggest a new enforcement emphasis that signals employers to tread carefully when assessing accommodation requests from pregnant workers. 

In written testimony submitted for a February EEOC hearing on pregnancy and caregiver discrimination, EEOC Legal Counsel Peggy Mastroianni asserted that with the expansion of covered disabilities under the Americans With Disabilities Act Amendments Act (ADAAA), certain common pregnancy-related conditions such as gestational diabetes, carpal tunnel syndrome, sciatica and anemia may now be deemed covered disabilities.

“The door is open to find pregnancy-related complications to be disabilities,” says Janilyn Brouwer Daub, a partner at Barnes & Thornburg.

Light Duty Loophole

Employers often provide light duty assignments for workers temporarily disabled by injuries sustained on the job while denying such accommodations to pregnant women whose doctors restrict them from activities such as lifting heavy objects. Federal courts generally have sustained such policies in cases such as Reeves v. Swift Transportation, a 2006 6th Circuit decision, as long as the policy applied to all workers injured on the job. The rationale was that because the pregnant employees were not injured on the job, they were not “similarly situated” to those eligible for light duty. 

But it appears that the EEOC may want to litigate this issue and try to change the case law based on the expanded definition of disabilities under the ADAAA.

“It wouldn't surprise me if the EEOC was taking a run at undoing some of those cases,” says Reed Russell, a partner at Phelps Dunbar who previously worked at the EEOC.

Russell points to Mastroianni's testimony, in which she wrote: “Unless there is a nondiscriminatory reason or business justification for doing otherwise, an employer must provide pregnant workers with the same access to light duty assignments that it provides to non-pregnant workers with other temporary medical conditions that similarly limit their ability to work.” She did not specify an exception for light duty policies limited to workers with on-the-job injuries. 

EEOC spokesperson Justine Lisser  says the agency believes the ADAAA expands protection for pregnant workers seeking accommodations.

“While pregnancy itself is not considered a disability recognized by the ADA, the expanded coverage of disability resulting from the ADAAA may make it easier for some individuals to establish that certain pregnancy-related impairments—like gestational diabetes—are disabilities,” says Lisser. “If this is the case, an employer would have to make a reasonable accommodation where necessary.”

Lisser adds that this could require an employer to change a light duty policy previously limited to employees with work-related injuries.

Legislative Initiative

The EEOC isn't the only place where workplace accommodation for pregnancy is under scrutiny. Some Democrats in Congress want to codify ADA-like protections for pregnant women.

The proposed Pregnant Workers Fairness Act, introduced this year in both the House and the Senate, would make it unlawful to refuse to “make reasonable accommodations related to the pregnancy, childbirth, or related medical conditions of a job applicant or employee,” unless the employer could demonstrate an undue hardship on the business.

Although it is modeled after the ADA, the proposed legislation goes a step further, making it unlawful to force a pregnant woman to accept an accommodation she does not want.

“Under the ADA, you have to provide a reasonable accommodation, but it doesn't have to be the accommodation of the employee's choice,” says Daub. “The [proposed] legislation goes beyond the ADA, and I find that troubling.”

She adds that one benefit of the legislation, which has a doubtful future, would be to provide clarity for employers in what is now a gray area.

“It concerns me that employers could get themselves in a situation where whatever complications a pregnant woman has could be construed as a disability,” she says. “It is not clear where that line is.”

Caution Advised

As a result, employers need to deal cautiously with an accommodation request from a pregnant employee. 

“You have to look at each case carefully. You can't make a bright-line decision,” Daub says.

Littler Mendelson Shareholder Sue Douglas says the first step is to determine whether the accommodation request is related to the pregnancy itself or to a complication of the pregnancy. If it's due solely to the pregnancy, the employer should evaluate not only the company policy on accommodations, but also whether the company is uniformly implementing the policy. A pregnant employee denied an accommodation may win her case if she can show that despite a policy denying accommodations for nonworkplace injuries, some employees received them.

If the request grows out of a pregnancy complication that is a disability under the ADA, it should be treated the same as any ADA request.

Employers should review their policies, practices and training related to the treatment of pregnant employees.

“Proceed with caution because this will be an area where the EEOC is looking for test cases,” Daub adds.