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eLABORate: Navigating the Murky Waters of Accommodations of Pregnancy-Related Limitations

November 07, 2018

There has been increasing media coverage regarding the extent of an employer’s obligation to accommodate pregnancy-related limitations that fall outside the scope of the Americans with Disabilities Act (ADA). While the Pregnancy Discrimination Act (PDA) does not require employers to provide accommodations to employees due to pregnancy or pregnancy-related limitations, it creates a potential trap for the unwary in which employers may be liable for pregnancy discrimination if they fail to provide certain accommodations in connection with pregnancy or pregnancy-related limitations.

With the passage of the ADA Amendments Act of 2008 (ADAAA), which became effective on January 1, 2009, Congress expanded the definition of “disability” under the ADA, making it easier for individuals to establish that they have a disability that falls within the meaning of the statute. As a result, while pregnancy itself is not a disability within the meaning of the ADA, some pregnancy-related impairments that were not previously considered disabilities under the ADA may now fall within the ADA’s coverage, entitling employees to a reasonable accommodation under that statute—absent undue hardship. For example, although temporary, pregnancy-related impairments such as preeclampsia, gestational diabetes, pregnancy-related sciatica, and pregnancy-related carpal tunnel syndrome, among others, might be considered disabilities within the meaning of the ADA.

What about those pregnancy-related limitations that do not fall with the ADA’s expanded definition of “disability”? The answer to this question is far from clear. The PDA provides that “women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes . . . as other persons not so affected but similar in their ability or inability to work,” 42 U.S.C. § 2000e(k). This has been interpreted to mean that an employee may be able to prove unlawful pregnancy discrimination under the PDA if the employer accommodates some workers unable to perform certain job functions but refuses to accommodate pregnant workers unable to perform those same job functions. Thus, employer policies that are not intended to discriminate on the basis of pregnancy may potentially violate the PDA if the policy imposes significant burdens on pregnant employees without a sufficiently strong justification.

An employee can call into doubt the employer’s justification by, for instance, showing that the employer accommodates a larger percentage of non-pregnant workers while failing to accommodate a large percentage of pregnant workers. For example, an employer who accommodates most non-pregnant employees with lifting restrictions by assigning them light duty work, but informs pregnant employees with similar lifting restrictions that they cannot work while under such restrictions may be found in violation of the PDA. As an additional example, an employer who disciplines an employee due to her lactating schedule, but allows non-pregnant employees to change their schedules for other temporary medical conditions, may be found in violation of the PDA.

It is important to keep in mind that, if an employee’s pregnancy-related limitation prevents her from fulfilling certain job duties, an employer is not obligated to treat her any differently than it would treat a non-pregnant employee who is in a similar position. In addition, the PDA does not require employers who provide a disability accommodation to any disabled worker or a specific group of disabled workers to unconditionally provide the same accommodation to all pregnant workers with comparable limitations.

The determination of whether an employer should afford a particular employee an accommodation for a pregnancy-related limitation requires an examination of the facts and circumstances in each individual case, including an examination of how others “similar in their ability or inability to work” are treated.

The Equal Employment Opportunity Commission (EEOC) has published “Enforcement Guidance on Pregnancy Discrimination and Related Issues” in an effort to assist employers in maneuvering through this murky area of the law. The published guidance includes suggested best practices for reducing the risk of pregnancy-related PDA violations, such as ensuring that light duty policies are structured so as to provide pregnant employees access to light duty equal to that provided to people with similar limitations on their ability to work and reviewing workplace policies that limit employee flexibility with respect to fixed work hours to ensure they are necessary for business operations. The complete guidance can be accessed here.

Adding to the complex world of pregnancy accommodation, many states have their own pregnancy discrimination laws for which covered employers must comply. For example, Louisiana has its own Pregnancy Discrimination Act, La. R.S. 23:341, et seq., that contains different obligations than the federal PDA and generally treats pregnancy and pregnancy-related medical conditions like other temporary disabilities.

There is no easy answer when it comes to the accommodation of pregnancy-related limitations that fall outside the scope of the ADA. It is critical that employers seek guidance from legal counsel experienced in these matters when faced with requests for accommodations with respect to pregnancy and pregnancy-related limitations.