Following up on our recent post regarding pregnancy discrimination developments, the Equal Employment Opportunity Commission issued the Enforcement Guidance: Pregnancy Discrimination and Related Issues on July 14, 2014.  This is the first comprehensive update of the EEOC’s guidance on discrimination against pregnant workers in thirty years, since its 1983 Compliance Manual chapter.  One major development in the new Enforcement Guidance is that pregnancy discrimination claims are not limited to the current pregnancy under the PDA – they can be based on “past pregnancy, childbirth, or related medical conditions.”  Thus, the EEOC will more likely find a causal connection between a past pregnancy and the challenged employment action if there is close timing between the two, however a longer time gap between the pregnancy and the challenged action will not foreclose a finding of pregnancy discrimination.

A significant portion of the Enforcement Guidance concerns the PDA’s requirement of equal treatment of pregnant workers in the workplace.  Under the Enforcement Guidance, a pregnant worker can establish a violation of the PDA by showing that she was denied an accommodation that was granted to other employees who are similar in their ability or inability to work.  This provision may be short-lived because this very issue is pending before the United States Supreme Court in Young v. UPS, where the Court will decide whether disabled workers are fair comparators for pregnant workers (for more information on Young, see our earlier post, PDA and Young: Pregnancy Discrimination Law to Break from its Infancy).

The Enforcement Guidance also advises against employers asking questions about an applicant’s or employee’s pregnancy status, plans to start a family or related issues during interviews or performance reviews.  These inquiries will generally be regarded as evidence of pregnancy discrimination if followed by an unfavorable decision affecting a pregnant worker.

Because these guidelines create more avenues for plaintiffs to bring pregnancy discrimination claims and confirm the EEOC’s interest in pregnancy-related claims, employers should expect to see more EEOC charges of pregnancy discrimination.  Though the Enforcement Guidance does not have the force of law, EEOC investigators will be using it to assess claims of discrimination, making it a useful tool for employers seeking to avoid discrimination claims based on gender or pregnancy.  The Enforcement Guidance can be found here, along with a Q&A and a fact sheet for small businesses.