On July 14, 2014, the Equal Employment Opportunity Commission ("EEOC") issued new enforcement guidelines on employer responsibilities with regard to pregnant employees under federal workplace laws. The Enforcement Guidance on Pregnancy Discrimination and Related Issues ("Guidance") advances the EEOC's position that the Pregnancy Discrimination Act ("PDA") and the American with Disabilities Act ("ADA"), as well as other federal statutes, offer expansive accommodations to pregnant employees.
A private school that employs twenty or more employees will generally fall under the purview of both the PDA and ADA. The Guidance does not provide pregnant employees with any greater rights under the PDA or ADA than already exist under California's Fair Employment and Housing Act ("FEHA"). However, private schools which are incorporated as religious non-profit entities are not governed by the FEHA. Accordingly, the EEOC's broad pregnancy-accommodation standards may be novel to religious schools. As a result, all schools should become familiar with the Guidance because it offers a detailed account of the EEOC's position regarding pregnancy discrimination under federal law.
The Guidance is composed of four sections. The first three sections explain the basic principles of the PDA, ADA, and other federal laws, respectively, and their applicability to pregnant workers. The last section offers numerous "best practices" for employers.
Section I of the Guidance addresses accommodations for pregnant employees under the PDA. Interestingly, the U.S. Supreme Court recently agreed to review the issue of an employer's obligation to offer "light duty" work accommodations for pregnant employees under the PDA, during its next term. By way of background, the PDA's express language does not require accommodations but rather places an obligation that pregnant individuals be treated the same as other employees similar in their abilities or inabilities to work. In comparison, the FEHA expressly requires reasonable accommodations for pregnant employees. But, in its Guidance, the EEOC advances the position that the PDA includes a de facto requirement that employers provide accommodation for pregnant women if these types of accommodations are made available to other employees with similar abilities or inabilities to work.
Section II of the Guidance expands the ADA's definition of "disabilities" that result from pregnancy. The EEOC explains that in determining whether impairment is a disability, the cause of the impairment is not relevant. The EEOC identified pregnancy-related carpal tunnel syndrome; gestational diabetes; swelling, especially in the legs, due to limited circulation, and depression as conditions that may require reasonable accommodation.
The EEOC provides other significant directions as well. For example, the EEOC explains that discrimination against employees based on their intent to get pregnant or on their previous pregnancy is prohibited under the PDA. Further, the EEOC indicates that to avoid a potential disparate impact violation, an employer's health insurance plan must cover prescription contraceptives on the same basis as prescription drugs used to prevent the occurrence of a medical condition other than pregnancy. While the EEOC acknowledged the recent Supreme Court's Hobby Lobby decision, which struck down an almost identical federal regulation adopted under the Affordable Care Act, the EEOC stated that its Guidance "explains Title VII's prohibition of pregnancy discrimination; it does not address whether certain employers might be exempt from Title VII's requirements under the [Religious Freedom Restoration Act] or under the Constitution's First Amendment."
Lastly, the EEOC's suggested "Best Practices" are practices that schools should have in place with regard to pregnant employees, such as:
- Develop, disseminate, and enforce a strong policy based on the requirements of the PDA and the ADA.
- Train managers and employees regularly about their rights and responsibilities related to pregnancy, childbirth, and related medical conditions.
- When making hiring or promotion decisions, focus on the applicant's or employee's qualifications for the job in question. Do not ask questions about the applicant's or employee's pregnancy status, children, plans to start a family, or other related issues during interviews or performance reviews.
- Develop specific, job related qualification standards for each position that reflect the duties, functions, and competencies of the position and minimize the potential for gender stereotyping and for discrimination on the basis of pregnancy, childbirth, or related medical conditions. Make sure these standards are consistently applied when choosing among candidates.
- Review any light duty policies. Ensure 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.
- Have a process in place for expeditiously considering reasonable accommodation requests made by employees with pregnancy-related disabilities, and for granting accommodations where appropriate.
- Train managers to recognize requests for reasonable accommodation, to respond promptly to all requests, and to avoid assuming that pregnancy-related impairments are not disabilities.
The Guidance demonstrates that the EEOC has broadened its interpretation of employer obligations with respect to pregnant employees under federal laws. Unless otherwise rejected by the Supreme Court, the EEOC's position may be used by courts in interpreting schools' obligations with regard to pregnant employees under federal law. While the Guidance is not a departure from what is already required by California laws, it promotes heightened requirements for schools that are not governed by California's employment anti-discrimination laws. The Guidance is a good reminder for schools to ensure that their policies and practices take into account pregnant employees' rights. Further, although the EEOC's guidelines are not binding on any court, they do provide insight into how the EEOC will assess pregnancy related discrimination claims and highlights issues the EEOC may focus on in the future.
Complete text of the Guidance can be found at: http://www.eeoc.gov/laws/guidance/pregnancy_guidance.cfm