For the first time in more than 30 years, the Equal Employment Opportunity Commission has issued new enforcement guidance on the subject of pregnancy discrimination. The catalysts for the issuance of the Enforcement Guidance on Pregnancy Discrimination and Related Issues (the “Enforcement Guidance”)1
on July 14, 2014 appear to have been, among other items, a nearly 40 percent increase since 1997 in the filing of pregnancy discrimination charges, a 2008 study finding that “pregnancy discrimination complaints have risen at a faster rate than the steady influx of women into the workplace[,]” and the 2008 passage of the Americans with Disabilities Amendments Act, which expanded the protections afforded to individuals with disabilities under the Americans with Disabilities Act (ADA). Other
contributing factors included confusion among courts and practitioners over the scope of the Pregnancy Discrimination Act (PDA), particularly with respect to the distinction between discrimination on the basis of pregnancy and discrimination on the basis of
caregiver status, increasing challenges to policies that adversely impact pregnant women in the workplace, and the Fourth Circuit’s hotly debated decision in Young v. United Parcel Serv., Inc., 707 F.3d 437 (4th Cir. 2013), which the U.S. Supreme Court will hear next term.
Though the Enforcement Guidance may not blaze any new trails, it attempts to clarify areas of confusion and address common misperceptions regarding
the PDA, and stakes several strident positions on issues under the PDA that as yet remain unresolved. With pregnancy discrimination lawsuits on the rise, including one that will soon be heard before the Supreme Court in Young v. UPS, employers must carefully review their policies and practices as they relate to pregnancy, and leaves of absence and accommodations generally, to ensure compliance with a statue that contains many nuances.
Statutory Background and Prior Guidance
Title VII of the Civil Rights Act of 1964 (Title VII) prohibits discrimination with respect to any terms or conditions of employment because of, inter alia, sex. In 1978, responding in large part to the Supreme Court’s decision in General Electric Co. v. Gilbert, 429 U.S. 125 (1976) that an exclusion of pregnancy- related disabilities from GE’s disability benefits plan did not violate Title VII, Congress passed the PDA, which amended Title VII to state that “[t]he terms ‘because of sex’ or ‘on the basis of sex’ include,
but are not limited to, because of or on the basis of pregnancy, childbirth, or related medical conditions;
The PDA not only prohibits discrimination based on current pregnancy, but also prohibits discrimination based on past pregnancy, potential or intended pregnancy, or medical conditions related to pregnancy or childbirth.
and women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes … as other persons not so affected but similar in their ability
or inability to work[.]”2 Five years later, in 1983, the EEOC published a Compliance Manual chapter on pregnancy discrimination. Since then, the EEOC had not provided any comprehensive updates on the subject of pregnancy discrimination until this past month’s Enforcement Guidance, which supersedes
the Compliance Manual chapter and incorporates the many developments over the past three decades in this area of the law.3
Overview of the Enforcement Guidance
Coverage of the PDA
Much of the Enforcement Guidance focuses on delineating the boundaries of what the PDA does and does not cover. The precise breadth of the PDA’s coverage may not always be obvious, as a PDA claim must be tied to pregnancy but need not be tied to current pregnancy. Rather, as the Enforcement Guidance explains, the PDA not only prohibits discrimination based on current pregnancy, but also prohibits discrimination based on past pregnancy,
potential or intended pregnancy, or medical conditions related to pregnancy or childbirth.
Discrimination Based on Potential Pregnancy
Claims of discrimination based on current pregnancy, including stereotypes about pregnant employees, may often be relatively easy to recognize as implicating
the PDA. For example, the Enforcement Guidance explains that it would be unlawful for an employer to “refuse to hire a pregnant woman based on an assumption that she will have attendance problems
or leave her job after the child is born.” That concept is fairly straightforward. But what about employers who make employment decisions, rooted in these same stereotypes or assumptions about pregnant women, with respect to a non-pregnant female who has expressed a desire to become pregnant? That too could be unlawful under the PDA, which, as
the Enforcement Guidance explains, also prohibits discrimination based on potential or intended pregnancy. For that reason, the EEOC suggests that “employers should not make inquiries into whether an applicant or employee intends to become pregnant.” Thus, questions designed to elicit whether a woman is “looking forward to starting or enlarging a family” would run afoul of the Enforcement Guidance and might be used as evidence of disparate treatment
of pregnant employees. For the avoidance of doubt, the EEOC warns employers that it “will generally regard such an inquiry as evidence of pregnancy discrimination where the employer subsequently makes an unfavorable job decision affecting a pregnant worker.”
According to the Enforcement Guidance, the prohibition of discrimination based on potential pregnancy also extends to such situations as discrimination based on contraceptive use, which the EEOC says is “necessarily” prohibited in light of the fact that “[c]ontraception is a means by which a woman can control her capacity to become pregnant[.]” For example, the EEOC opined that “providing health insurance that excludes coverage of prescription contraceptives … but otherwise provides comprehensive coverage” can constitute unlawful discrimination “on the basis of gender” “[b] ecause prescription contraceptives are available only for women[.]” However, the fact that the EEOC referred to this situation as a violation of “Title VII” for discrimination “on the basis of gender” suggests that while it would fall under the coverage of Title VII’s prohibition on sex discrimination, it might not necessarily fall under the coverage of the PDA’s
prohibition on pregnancy discrimination – a subtle, yet important, distinction. In addition, recognizing the U.S. Supreme Court’s decision in Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751 (2014) that the Patient Protection and Affordable Care Act’s contraceptive mandate violated the Religious Freedom Restoration Act (RFRA) in some circumstances, the EEOC clarified that its Enforcement Guidance “does
not address whether certain employers might be exempt from Title VII’s requirements under the First Amendment or the RFRA.”
Discrimination Based on Past Pregnancy
The breadth of the PDA’s coverage may be particularly difficult to decipher when considering a claim of discrimination based on past pregnancy. In explaining that the PDA is not limited to claims based on current pregnancy, the Enforcement Guidance quotes from a District of Colorado decision that “[i]t would make little sense to prohibit an employer from firing a woman during her pregnancy but permit the employer to terminate her the day after delivery if the reason for termination was that the woman became pregnant in the first place.”4 Indeed, this situation
is similar to that alleged by the EEOC in a litigation filed on August 7, 2014, EEOC v. Savi Technology, Inc. (E.D. Va.), in which the Commission claims
that the defendant unlawfully rescinded an offer of employment less than 24 hours after learning that the applicant had recently given birth and had pregnancy- related surgery.
Of course, most situations will not be as clear-cut as this example, and many women in the workplace fall under the category of “formerly pregnant.”
So how is a court to assess whether an adverse employment action taken against a formerly pregnant woman was taken because of that woman’s past pregnancy, such that it would fall under the scope
of the PDA? There is no bright line delineating when an adverse employment action taken against a formerly pregnant woman will no longer put the
employer at risk for a PDA claim, but the Enforcement Guidance states that “[a] causal connection between a claimant’s past pregnancy and the challenged action more likely will be found if there is close timing between the two.” Still, the Enforcement Guidance warns that “[a] lengthy time difference between a claimant’s pregnancy and the challenged action will not necessarily foreclose a finding of pregnancy discrimination if there is evidence establishing that the pregnancy, childbirth, or related medical conditions motivated that action.”
Notably, the EEOC acknowledges that “[i]t may be difficult to determine whether adverse treatment following an employee’s pregnancy was based on the pregnancy as opposed to the employee’s new childcare responsibilities.” While the former would fall under the coverage of the PDA, the latter, as the EEOC explains, could constitute a Title VII violation “where there is evidence that the employee’s gender or another protected characteristic motivated the employer’s action.” For this proposition, the EEOC cites to its prior Enforcement Guidance, issued
May 23, 2007, on Unlawful Disparate Treatment of Workers with Caregiving Responsibilities” (the
“Caregiver Guidance”),5 in which the EEOC explained,
inter alia, that although caregiver status is not itself a protected category, “[e]mployment decisions
that discriminate against workers with caregiving responsibilities are prohibited by Title VII if they are based on sex or another protected characteristic, regardless of whether the employer discriminates
more broadly against all members of the protected class.” Though no bright line exists delineating where the PDA ends and where caregiver discrimination begins, an illustrative example is that while some courts have explained that requests for extended maternity leave to care for the medical needs of a newborn child are not protected by the PDA,6 the EEOC’s Caregiver Guidance clarified that denying male employees’ requests for childcare-related
leave while granting female employees’ requests for childcare-related leave could constitute unlawful discrimination on the basis of gender plus caregiver status in violation of Title VII.
Discrimination Based on Medical Conditions Related to Pregnancy or Childbirth
Another core tenet of the PDA is its requirement that employers treat women with medical conditions
related to pregnancy or childbirth “the same as others who are similar in their ability or inability to work but are not affected by pregnancy, childbirth or related medical conditions.” This requirement often comes into play in the context of leave of absence policies: the Enforcement Guidance explains that uniform application of a leave policy does not constitute unlawful disparate treatment, but a policy that restricts leave could form the basis of a disparate impact claim if it disproportionately impacts pregnant women and is not job related or consistent with business necessity. The Enforcement Guidance further explains that the protection of women with medical conditions related to pregnancy or childbirth can also, under some circumstances, extend to protect women who are lactating or breastfeeding, or who have had (or are contemplating having) an abortion.
One aspect of the PDA that has confounded many courts and employers is whether the PDA requires employers to take affirmative steps to ensure “equal treatment,” the way they must in order to provide certain accommodations under Title VII for religious beliefs and under the ADA. The Enforcement Guidance explains that when a pregnant employee is temporarily unable to perform the functions of her
job, her employer must treat her “the same as it treats other employees similarly unable to perform their jobs, whether by providing modified tasks, alternative
assignments, leave, or fringe benefits.” Significantly, the Enforcement Guidance provides that that an employer may not shirk this requirement by “relying on a policy that makes distinctions based on the source of an employee’s limitations (e.g., a policy of providing light duty only to workers injured on the job) [,]” and states that the EEOC “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.” This aspect of the Enforcement Guidance is particularly noteworthy because less than two weeks before the Enforcement Guidance was issued, the U.S. Supreme Court granted certiorari
in Young v. United Parcel Serv., Inc., No. 12-1226
(U.S. July 1, 2014) on the question of whether, and in what circumstances, the PDA requires an
employer that provides work accommodations to non- pregnant employees with work limitations to provide comparable work accommodations to pregnant employees who are similar in their ability or inability to work. Thus, the forthcoming Supreme Court decision next term in Young v. UPS could lend support to, or potentially reject, the position staked out by the EEOC in its Enforcement Guidance.
The contours of this EEOC-endorsed requirement may, at times, be difficult for an employer to navigate. On the one hand, the Enforcement Guidance confirms that “if an employer’s light duty policy places certain types of restrictions on the availability of light duty positions, such as limits on the number of light duty positions or the duration of light duty assignments,
the employer may lawfully apply those restrictions to pregnant workers, as long as it also applies the same restrictions to other workers similar in their ability or inability to work.” That is consistent with the basic proposition that, as the Enforcement Guidance notes, “Title VII does not … require an employer … to treat pregnancy-related absences more favorably than absences for other medical conditions.” On the other hand, an employer that rejects a pregnant employee’s request for light duty work should be sure that the rejection is consistent with its uniformly applied
policy or practice, because even “[i]n the absence of pregnancy-related statements evidencing animus,
a pregnant worker may still establish a violation of the PDA by showing that she was denied light duty or other accommodations that were granted to other employees who are similar in their ability or inability to work.”
Other Laws Affecting Pregnant Employees
The Enforcement Guidance also discusses certain other laws besides the PDA that may affect pregnant employees, in particular, the ADA (and its recent amendments) and the Family and Medical Leave Act (FMLA). The ADA prohibits discrimination on
the basis of disability (defined as an impairment that substantially limits one or major life activities), and requires employers to provide reasonable accommodations to employees with disabilities (absent undue hardship to the employer). The Enforcement Guidance explains 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 under the ADA[.]” Even though these impairments are only temporary, if they substantially limit a major life activity, they will trigger coverage under the ADA, and the employer will be obligated to provide reasonable accommodations to the pregnant employee. Of course, according to the EEOC, the PDA independently requires employers to provide certain accommodations, such as light duty work, to employees with pregnancy-related medical conditions, if the employer provides such accommodations to non-pregnant employees similar
in their ability or inability to work (which the ADA might require the employer to do, depending on whether the comparator employee’s impairment substantially limits a major life activity). This interplay between the ADA and the PDA, with respect to accommodations for pregnant workers, is an area that may be explored by the Supreme Court in Young v. UPS.
While Title VII and the PDA only require employers to provide pregnancy or parental leave if such leave is provided to similarly situated employees for reasons unrelated to pregnancy or parental status, “the
FMLA does require covered employers to provide such leave.” Specifically, the FMLA allows eligible
employees to take “up to 12 workweeks of leave during any 12-month period” for reasons including, for example, the birth and care of the employee’s newborn child. While an employee is on FMLA leave, the employer must maintain the employee’s existing level of coverage under a group health plan, and when the employee returns from FMLA leave, the employer must restore the employee to his or her original job or to an equivalent job. Thus, the FMLA is another critical law affecting pregnant employees as well as new parents, whether male or female.
Finally, the Enforcement Guidance lists certain other laws that affect employees who are pregnant or have caregiving responsibilities. For example, Executive Order 13152 prohibits discrimination in federal employment based on parental status, and Section 4207 of the Patient Protection and Affordable Care Act requires reasonable break time, in a private place, for nursing mothers to express breast milk. Moreover, various state and local laws are more expansive than the federal protections for pregnant employees and new parents, such as the California law requiring employers to provide up to four months of unpaid pregnancy disability leave.
Best Practices for Employers
As evidenced by the EEOC’s decision to issue new enforcement guidance and the Supreme Court’s decision to grant certiorari in Young v. UPS, the jurisprudence surrounding pregnancy discrimination has evolved a great deal since the PDA was first enacted in 1978, and is continuing to be developed. Close familiarity with the requirements and intersection of the PDA, the ADA, and the FMLA, among other laws, is essential for employers with pregnant workers. To that end, the Enforcement Guidance provides a list of “suggestions for best practices that employers may adopt to reduce the chance of pregnancy-related PDA and ADA violations and to remove barriers to equal employment opportunity.” In addition to staying apprised on the continuing developments in this area of the law, employers should review and consider the EEOC’s suggested best practices, but are not required to implement them, as the EEOC acknowledges that
these are “proactive measures that may go beyond federal non-discrimination requirements[.]” The EEOC’s suggested “best practices” include, for example, the following:
“Develop, disseminate, and enforce a strong policy based on the requirements of the PDA and the ADA” and “[t]rain managers and employees regularly about their rights and responsibilities related to pregnancy, childbirth and related medical conditions.” These are commonsense best practices that are advisable for all employers, although employers should be commercially reasonable in assessing how regular and in-depth these trainings should be.
“Respond to pregnancy discrimination complaints efficiently and effectively” and “[p]rotect applicants and employees from retaliation.” These too
are commonsense best practices that apply universally.
“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.” This practice is also advisable for all employers, and is one that employers should remind their managers and supervisors about, as even seemingly innocent questions (“how are your kids doing?”)
could be interpreted in unintended ways, especially during such formal settings as interviews or performance reviews.
“Ensure that job openings, acting positions, and promotions are communicated to all eligible employees.” While it is not always practicable to post every job opening, doing so is a best practice as a general matter. Employers should develop a policy with respect to job openings, and then apply that policy consistently.
“When reviewing and comparing applicants’ or employees’ work histories for hiring or promotional purposes, focus on work experience and accomplishments and give the same weight to cumulative relevant experience that would be given to workers with uninterrupted service.” In other words, employers should not treat prior
leaves of absence as a demerit when evaluating an employee’s or applicant’s work history. Focus on what the employee accomplished while on the job – not what the employee missed out on while on leave.
“If there is a restrictive leave policy (such as restricted leave during a probationary period), evaluate whether it disproportionately impacts pregnant workers and, if so, whether it is necessary for business operations.” Policies that have a disproportionate adverse effect on women leave employers vulnerable to class claims for discrimination under a disparate impact theory – the kind of high-stakes litigation that any employer would want to avoid.
“Ensure that employees who are on leaves of absence due to pregnancy, childbirth, or related medical conditions have access to training,
if desired, while out of the workplace.” This suggestion may or may not be practicable, as employers generally do not engage in “training” of employees who are on leaves of absence, but at a minimum, employers should have a contact person who can answer any questions that employees may have about their leave periods (whether pregnancy-related or not).
“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” and
“[t]emporarily reassign job duties that employees are unable to perform because of pregnancy or related medical conditions if feasible.” Employers may gain clarity on their obligations regarding light duty work for pregnant employees after
the Supreme Court decides Young v. UPS, but regardless of how the Court decides, employers should strive to follow these suggestions, at least when feasible.
“Have a process in place for expeditiously considering reasonable accommodation requests made by employees with pregnancy-related disabilities,” “[t]rain managers to recognize requests for reasonable accommodation,” and “[i]f a particular accommodation requested by
an employee cannot be provided, explain why, and offer to discuss the possibility of providing an alternative accommodation.” Whether dealing with pregnant employees or non-pregnant employees with ADA-qualifying disabilities, engaging in a good faith, interactive process with the employee may result in a reasonable accommodation that benefits all parties, and even if it does not, it will enhance the employer’s chances of prevailing if the employee files suit challenging the employer’s refusal to accommodate.
Navigating the requirements of the PDA and other pregnancy-related laws is not always easy, but employers who familiarize themselves with the core principles of these laws, and who consult with counsel when necessary, will maximize the likelihood of avoiding pregnancy discrimination
in the workplace, and will put themselves in an advantageous position if and when a pregnancy- related issue or litigation arises.