Employers Must Treat Pregnant Workers Mindfully to Avoid Compliance Challenges

Proper treatment of pregnant workers is in the headlines as a result of recent guidance from the U.S. Equal Employment Opportunity Commission on pregnancy accommodations and a high profile U.S. Supreme Court case involving a UPS worker. More than ever employers must be mindful of how they’re treating pregnant workers as there are a host of shifting issues associated with these employees, say employment law experts Jon Hyman of Meyers Roman and Jeff Nowak of Franczek Radelet, authors of the popular Ohio Employer’s Law Blog and FMLA Insights blog respectively. Hyman and Nowak recently offered their thoughts on changing practices and regulations for pregnant workers during Thompson’s #hrintelchat on Twitter.


The biggest challenge employers face in dealing properly with pregnant workers are determining both what tasks pregnant women can/can’t do and what accommodations make sense.

Nowak tweeted that employers should work to avoid stereotype about tasks they can or can’t do. Hyman noted that employers should be wary of an inclination to treat pregnant workers with kid gloves, because “even good intentions can have discriminatory impact,” he cautioned.

Another challenge for employers, Nowak said, lies in identifying accommodations despite the broad list of restrictions. It’s important because “pregnancy-related conditions will increasingly be considered disabilities under [the Americans with Disabilities Act].”

Accommodations and EEOC Guidance

Under the Pregnancy Discrimination Act, employers may not “discriminate in the workplace based on pregnancy, childbirth, or related medical conditions,” Nowak noted. However, the law does not mandate accommodations for pregnant workers. Essentially, Hyman said, you cannot treat pregnant employees any worse than you would treat other employees with a “similarly disabling medical conditions.”

The recently released EEOC guidance also clarified that if an employer provides accommodations for non-pregnant employees, they also will have to do the same for pregnant employees.

The EEOC guidance, “is a game changer in that it unambiguously puts accommodations in play” for pregnant employees, Nowak said.

The EEOC’s guidance two main pillars, Nowak said, are:

  • employers should stop forcing pregnant employees to simply go on leave without taking into consideration other accommodations; and
  • making light duty considerations in cases where other employees would have the same opportunity.

Employers are likely to challenge the EEOC’s position, both Nowak and Hyman agreed.

What to Watch

A pending case before the Supreme Court, Young v. UPS “has the potential to be very important,” Hyman said. In the case a UPS employee had in-vitro treatments that gave her related restrictions affecting her position as a driver, so she asked for temporary light duty. The request was denied by UPS because the company’s collective bargaining agreement prohibited light duty for pregnancy. The agreement only provided light duty under the ADA or if an employee was injured on the job and did not classify pregnancy as a disability..

For employers the best case result of the Supreme Court case would be a ruling that “lets employers limit accommodation obligations by policy (or, as in this case, by CBA),” Hyman noted. It’s possible the Supreme Court ruling could render the EEOC guidance moot, Nowak said, but both he and Hyman agreed the court is unlikely to make a sweeping decision in this particular case when it can rely on the CBA terms..

In addition to the pending litigation, Hyman said that related issues like the rights of new fathers (paternity leave) and same-gender discrimination charges bear careful scrutiny by employers.

“This whole paternity leave, sex discrimination issue could percolate soon,” Nowak agreed.

Employers “can’t treat similarly situated folks differently so maternity leave will always raise parallel paternity leave issues,” Hyman said.

Looking ahead, Hyman and Nowak said employers need to make sure they’re complying with the PDA. EEOC has made enforcement of the provisions a priority and filed a fair number of enforcement actions, but the bigger risk for employers will continue to be private enforcement via lawsuit. There’s a big question mark over the EEOC’s priorities and agenda with a presidential election looming in 2016, but in the meantime employers should be mindful of the regulations.

Employer Take-away

Issues around treatment of pregnant workers, and associated issues around family leave and accommodations, aren’t going anywhere. Employers should consider accommodations for pregnant workers who may need them. For the time being both the courts and the EEOC are continuing to make this a high priority, and employers would do well to examine their current policies and practices to make sure they are fair and compliant with the prevailing statutes, regulations and guidance.

This article was developed from an online Twitter chat facilitated by @ThompsonHR. Chats on a rotating roster of topics occur regularly. Follow @ThompsonHR to see when the next chat is scheduled, and use the #hrintelchat hashtag to follow the full discussion. 

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