The Equal Employment Opportunity Commission (EEOC) recently issued Enforcement Guidance on Pregnancy Discrimination and Related Issues. The Guidance notes that, by passing the Pregnancy Discrimination Act (PDA), Congress intended to protect all aspects of pregnancy and employment, including hiring, firing, promotion, health insurance benefits, and treatment in comparison with non-pregnant persons similar in their ability or inability to work. Most notably, the Guidance overturns the EEOC’s long-standing position that a normal pregnancy is not a disability and requires employers to provide prescription contraception coverage.
Many, including two EEOC Commissioners, have responded to the new Guidance by arguing that the Commission is legislating, not regulating, or even interpreting, current law.
Snapshot of the Guidance
The following is a brief synopsis of the directions included in the Guidance:
- Pregnancy discrimination claims may be based upon a past pregnancy.
- Employers are prohibited from treating employees differently based on their family status or their intention to have children.
- Employers are prohibited from firing a female employee who takes time off to undergo in vitro fertilization.
- Employers violate Title VII by firing a female employee because she uses contraceptives or by providing health insurance that excludes coverage of prescription contraceptives.
- Employers may not discriminate against a woman with a medical condition relating to pregnancy or childbirth, including lactation and breastfeeding.
- Employers may not take adverse employment action against an employee for having an abortion or contemplating having an abortion.
- Employers cannot require a female employee to take leave because she is pregnant as long as she is able to perform her job.
- Employers must treat a pregnant employee who is temporarily unable to perform the functions of her job the same as they treat other employees temporarily unable to perform the functions of their job.
The EEOC’s adoption of the Guidance was not unanimous. Two Commissioners issued public dissents expressing their opinion that the Guidance is fatally flawed. The defense bar has echoed these concerns.
Chief among the concerns is the fact that a pregnant employee who does not have a disability under the Americans With Disabilities Act is nonetheless entitled to reasonable accommodations if she has a job restriction that is similar to an individual with a disability. This would elevate pregnant employees to a kind of “super-status” above that of individuals with disabilities.
In addition, the Guidance goes beyond protecting an employee’s right to discuss and use contraceptives, but requires that any employer that provides comprehensive health insurance must also provide prescription contraceptive coverage. This position already has been overruled by the U.S. Supreme Court’s decision in Burwell v. Hobby Lobby Stores, Inc., et al., ___ S.Ct.___, 2014 WL 2921709 (June 30, 2014).
Finally, many have questioned the timing of the Guidance, which was released just two weeks after the Supreme Court agreed to hear Young v. United Parcel Serv., Inc., 707 F.3d 437 (4th Cir. 2013), cert. granted, 81 USLW 3602 (U.S. July 1, 2014) (No. 12-1226) and without public review and comment. In Young, the Fourth Circuit held that the PDA does not require an employer to provide an employee with a normal pregnancy with the type of accommodations that the new Guidance requires.
As noted in EEOC v. Sundance Rehab. Corp., 466 F.3d 490, 500 (6th Cir. 2006), all EEOC guidelines -- including the new Guidance -- are entitled to deference from courts only to the extent of their persuasive power. Therefore, the Guidance does not have the force of law. Employers can be certain, however, that the EEOC and employees’ counsel will utilize the Guidance in their charges and lawsuits involving claims of pregnancy discrimination.
Unless and until the Young decision overrules the Guidance, employers should:
- Review your anti-discrimination, accommodation, leave of absence, and benefits policies and procedures to make necessary changes to ensure they comply with the Guidance.
- Review any light-duty policies to ensure that they provide pregnant employees access to light duty that is equal to that provided to people with similar limitations on their ability to work.
- Regularly train managers and employees about their rights and responsibilities related to pregnancy, childbirth, and related medical conditions.
- Take discrimination complaints seriously. Investigate complaints promptly and thoroughly. Take corrective action and implement corrective and preventive measures as necessary to resolve the situation and prevent problems from arising in the future.
- 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.
- Always make sure employment decisions are well documented and, to the extent feasible, are explained to affected persons.
Employers should 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.