09/08/2014 06:07 pm ET Updated Nov 08, 2014

Pregnant Pause

The Equal Employment Opportunity Commission (EEOC) recently issued new guidance on pregnancy discrimination. The new guidance broadened the definition of pregnancy to include all aspects of the reproductive process, including contraception, termination of pregnancy, childbirth and post-birth.

In 1978, the Pregnancy Discrimination Act (PDA) amended the Civil Rights Act of 1964, to include the protection on the basis of pregnancy, childbirth, or related medical conditions under the protected class of sex. EEOC issued guidance in 1983, before the Americans with Disabilities Act (ADA) or the Americans with Disabilities Amendment Act (ADAAA) were enacted. This guidance states though pregnancy is not a disability; many related conditions may be, including temporary medical conditions which are now covered under the ADAAA.

The Pregnant Workers Fairness Act was introduced this year in Congress. This legislation will award reasonable accommodation to pregnant workers. Before waiting for Congress, the EEOC guidance states that the pregnant worker is entitled to a reasonable accommodation without evidence of a disability.

Constance S. Barker, EEO Commissioner points out the flaws in the enforcement guidance on pregnancy discrimination. The first flaw places employees who are pregnant in a super-status above that of individuals with disabilities. There is no legal ground for this comparison between a worker who is pregnant and one who has a disability.

The Supreme Court is reviewing whether United Parcel Services violated the PDA by requiring Peggy Young to take an unpaid maternity leave rather than be granted a light-duty position. The EEO guidance goes ahead and provides light duty to pregnant workers.

Prior to this guidance being issued, a company may limit light-duty assignments to work-related injuries. Often light-duty is busy-work of little value designed to reduce worker's compensation premiums and keep the employee active. After all, the injury is a result of the company's work. The Commission used the rationale of source discrimination; discriminating against the source of the injury to expand this still restricted light-duty to pregnant workers. Companies should consider whether they want to maintain any light-duty assignments.

The guidance also encompasses the Affordable Care Act's (ACA) provision for FDA - approved contraceptive coverage (excluding religious qualifications) and the Nursing Mothers Act under the PDA. This changes things. A violation of the PDA falls under the EEOC and allows for compensatory and punitive damages.

The Nursing Mothers Act, a part of the ACA amended the Fair Labor Standards Act requiring an employer to provide unpaid breaks for women to express milk in a place, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public. Prior to this pregnancy discrimination enforcement guidance being issued, the mother could only force the employer to provide a private area and time.

Many states have enacted protections beyond the 1978 legislation and previous EEOC guidance. The timing of this guidance is premature based on the pending Congressional action and Supreme Court decision. Perhaps a pregnant pause should have been prescribed.