EEOC Issues Pregnancy Discrimination Enforcement Guidance

The guidance was issued over steep objection from two commission members and raises questions about its statutory authority and timing.

The Equal Employment Opportunity Commission (EEOC) issued new enforcement guidance (the Guidance) on July 14 relating to pregnancy in the workplace.¹ Like all EEOC guidelines, the new Guidance does not have the force of law and is entitled to deference from courts only "to the extent of its persuasive power."² In this case, the Guidance is controversial, particularly for its view that employers must modify job requirements for pregnant and lactating workers, even if the pregnancy is normal and the employee is healthy and not disabled under the meaning of either the Americans with Disabilities Act (ADA) or state law. Many critics believe that the Guidance is not grounded in statutory authority, including two of the five EEOC commissioners who dissented. Moreover, the Guidance's timing raises questions, with the U.S. Supreme Court set