On July 14, 2014, the U.S. Equal Employment Opportunity Commission (EEOC) issued “Enforcement Guidance on Pregnancy Discrimination and Related Issues,” along with a question and answer document and a“Fact Sheet for Small Businesses: Pregnancy Discrimination.” The guidance was issued over the strong objection of Commissioners Constance Barker and Victoria Lipnic, who both released public statements in opposition.
The new guidelines are the first comprehensive update on pregnancy discrimination issued by the EEOC in more than 30 years. The guidance discusses the EEOC’s view of the legal requirements under the Pregnancy Discrimination Act (PDA), as well as the relationship between the PDA and the Americans with Disabilities Act (ADA). While the EEOC stated in its press release that much of its analysis is “an update to longstanding EEOC policy,” the guidelines appear to extend the duties of employers when it comes to pregnant workers, past-pregnant workers, potentially-pregnant workers, lactating workers, and workers taking parental leave. The following guidelines are particularly notable:
- The PDA covers not only currently pregnant employees, but employees who had a past pregnancy or a potential or intended pregnancy.
- The PDA covers issues relating to lactation and breastfeeding since it is a pregnancy related medical condition, as such a demotion as a result of an employee’s breastfeeding schedule could raise an inference of unlawful discrimination.
- An employer must treat a pregnant employee who is temporarily unable to perform the functions of her job the same as it would treat other employees who are similar in their inability to work, which may include providing light duty, modified tasks, alternative assignments, leave, or fringe benefits.
- While caregiving responsibilities are not covered under the PDA, actions by the employer, such as reassigning a woman who recently returned from pregnancy-related medical leave to less desirable work, may still expose the employer to claims of discrimination on the basis of sex or other protected classes.
- An employer cannot require that a pregnant worker take leave until her child is born, unless there is a bona fide occupational qualification defense, which is extremely narrow and does not include the employer’s concern over the health of the fetus.
- A showing of disparate impact may not require statistical evidence if the person can show that all or substantially all pregnant women would be negatively affected by the policy.
- Parental leave must be provided to men and women on the same terms.
Most notably, perhaps, is the EEOC’s treatment of pregnant workers seeking an accommodation. Under the new guidelines, an employer must give a reasonable accommodation to a pregnant employee with work restrictions, even if the employee does not have a “disability” as defined by the ADA. As Commissioner Lipnic points out in her public statement, “No federal Court of Appeals has adopted this position; indeed, those which have addressed the question have rejected it.” In Commissioner Barker’s Memorandum attached to her public statement, she stated that this change elevates pregnant workers to “a kind of super-status above that of individuals with disabilities.” (Emphasis in original). In addition, the guidelines suggest that a disabled worker under the ADA with similar restrictions to the pregnant worker would be an appropriate comparator for PDA purposes. Both dissenting Commissioners question whether the guidelines relating to an accommodation are legally correct under the plain language of the PDA and ADA.
Fortunately, any confusion as a result of the new guidelines will soon be clarified since the U.S. Supreme Court recently decided to take up the issue of whether an accommodation is required under the PDA. The Supreme Court recently granted certiorari in Young v. United Parcel Service, Inc., in order to review the U.S. Fourth Circuit Court of Appeals’ holding that the PDA does not mandate the very type of accommodation that the EEOC now says is required. As such, it is possible that the Supreme Court will take an opposing view of the existence of an accommodation requirement. For now, the law of the land will be dictated by each federal circuit’s interpretation of this issue, but the guidelines provide a caution to employers to tread carefully when dealing with a requested accommodation for a pregnant worker.
In conclusion, it is recommended that employers review the new guidelines, as well as the “Best Practices” section. While the guidelines are not binding law, they are instructive insight into the priorities of the EEOC. Specifically, these extensive new guidelines are a strong statement that the treatment of pregnant workers in the work place is a high priority for the EEOC. As a result, it is also highly recommended that employers take a fresh look at their pregnancy-related policies and procedures in light of these new guidelines.