Executive Summary: The EEOC has issued new guidance on the reach of the Pregnancy Discrimination Act ("PDA"), and, not surprisingly, taken a very expansive view of the protections to be afforded pregnant employees.
In its July 14, 2014 Enforcement Guidance on Pregnancy Discrimination and Related Issues, the agency takes the position that denying a pregnant employee light duty work pursuant to a policy limiting light duty to employees injured on the job violates the PDA. Specifically, the new guidance states:
The Commission rejects the position that the PDA does not require an employer to provide light duty for a pregnant worker if the employer has a policy or practice limiting light duty to workers injured on the job and/or to employees with disabilities under the ADA.
The EEOC noted that this position has not been accepted by some courts, but stated that such decisions are "flawed" because the analysis is too restrictive. The EEOC's expansive view was not unanimous, as Commissioner Constance S. Barker, one of two dissenting Commissioners, stated: "I believe the courts will not only find those concepts unpersuasive and decline to follow them, but will also hold that they are arbitrary and capricious and an abuse of Commission discretion." Whether courts follow the EEOC's new guidance remains to be seen.
It should be noted that the Sixth Circuit recently took the position that denying a pregnant employee light duty pursuant to a facially neutral policy limiting light duty to employees injured on the job violates the PDA, suggesting a potential shift in courts' analysis of this issue. For more information on this decision, please see our January 15, 2014 Alert.
The EEOC also reaffirmed its position that the definition of disability under the Americans with Disabilities Act (ADA) may apply to workers with impairments related to pregnancy. It stated that, "[a]lthough pregnancy itself is not an impairment within the meaning of the ADA, and thus is never on its own a disability, some pregnant workers may have impairments related to their pregnancies that qualify as disabilities. . . even though they are only temporary." The guidance listed examples of pregnancy-related impairments that could potentially constitute disabilities, including, but not limited to, disorders of the uterus and cervix which may require bed rest during pregnancy; gestational diabetes; and nausea causing severe dehydration.
The EEOC, however, went one step further, indicating that an employee who is pregnant but not suffering from an impairment may still be entitled to an ADA-type reasonable accommodation under the PDA. Indeed, the guidance cited lifting restrictions as an example of an accommodation that a pregnant employee may be entitled to receive even if she is not otherwise deemed disabled under the ADA. Again, the EEOC relied upon its analysis that the PDA's non-discrimination provision would require that the pregnant employee be treated the same as an employee covered under the ADA. The EEOC provided the following example:
An employer has a policy or practice of providing light duty, subject to availability, for any employee who cannot perform one or more job duties for up to 90 days due to injury, illness, or a condition that would be a disability under the ADA. An employee requests a light duty assignment for a 20-pound lifting restriction related to her pregnancy. The employer denies the light duty request, claiming that pregnancy itself does not constitute an injury, illness, or disability, and that the employee has not provided any evidence that the restriction is the result of a pregnancy-related impairment that constitutes a disability under the ADA. The employer has violated the PDA because the employer's policy treats pregnant employees differently from other employees similar in their ability or inability to work.
Employers' Bottom Line: While employers have traditionally been permitted to limit light duty work to those employees injured on the job, employers are now cautioned not to rely on facially neutral policies when denying light duty to a pregnant employee, and to carefully consider whether ADA-type accommodations should now be afforded to pregnant employees regardless of whether they are covered by the ADA.