Refusing to accommodate new mothers’ lactation after a pregnancy, refusing bathroom breaks during a pregnancy, or punishing workers for planning a future pregnancy are now all forms of illegal discrimination under federal rules.
New guidelines from the Equal Employment Opportunity Commission, the first on pregnancy since 1983, passed by a party-line 3-to-2 vote on Monday. The Democratic majority found that conditions related to pregnancy can qualify as legally protected disabilities under federal law, that it’s usually illegal to keep women out of certain jobs because the working conditions could be bad for a pregnancy, and that health-care costs tied to a pregnancy need to be treated like other costs under company insurance plans.
Under President Obama, the EEOC has issued other bold instructions. A 2012 ruling, for instance, made discrimination against transgender workers a form of illegal sex discrimination. “The EEOC is spending a lot of time now prosecuting pregnancy discrimination,” says employer-side attorney Michael Cohen.
But the EEOC’s guidelines lack the legal force of an act of Congress or a Supreme Court ruling. Backed by the president, Democrats have introduced a congressional bill requiring employers to accommodate pregnant workers, but there’s no reason to think it will reach Obama’s desk this session. And the Supreme Court agreed this month to hear a case, Peggy Young v. United Parcel Service, which threatens to undo some of the EEOC’s pregnancy work.
Young, a former delivery driver, argues that the Pregnancy Discrimination Act required UPS to provide her with doctor-recommended light duty just as it accommodates workers with other medical conditions. UPS contends it’s within its rights to restrict accommodations to people who are injured at work, have lost their drivers’ certification, or have a disability recognized by the Americans With Disabilities Act. A UPS spokeswoman says the company will review the new EEOC instructions and that the new rules may not impact the Supreme Court case.
Samuel Bagenstos, the University of Michigan Law School professor who’s representing Young, says he sees the EEOC vote as vindication of “the position we’ve taken all along—that the Pregnancy Discrimination Act, by its terms, requires employers to give pregnant workers the same accommodations they give to other valued employees.”