This summer marked the 50th anniversary of the Civil Rights Act of 1964, legislation first introduced by President John F. Kennedy in response to the growing civil rights movement. For employers, the most important component of the act is Title VII, which prohibits employment discrimination on the basis of race, color, sex, national origin, and religion. A number of landmark decisions, legislation, and executive orders have broadened the scope of Title VII and resulted in greater protection for women and minorities in the workplace.
The 50th anniversary is an opportune time to look at decisions and trends that will shape the future of Title VII, including two particularly noteworthy items: recent guidance from the Equal Employment Opportunity Commission (EEOC) on pregnancy discrimination, and a recent amendment to an executive order prohibiting federal contractors from discriminating on the basis of sexual orientation and gender identity.
In July, for the first time in over 30 years, the EEOC issued enforcement guidance on pregnancy discrimination.1 The guidance addresses the Pregnancy Discrimination Act (PDA), which Congress enacted in 1978 to clarify that discrimination based on pregnancy, childbirth, or related medical conditions is a form of sex discrimination prohibited by Title VII. The PDA requires, among other things, that “women affected by pregnancy, childbirth, or related medical conditions must be treated the same as other persons not affected but similar in their ability or inability to work.”
The EEOC guidance states that a pregnant worker may “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” and provides 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 (Americans with Disabilities Act, italics added). 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.
This example is noteworthy considering a factually similar case pending before the U.S. Supreme Court. In Young v. UPS, a part-time delivery driver for UPS, Peggy Young, became pregnant after working for the company for several years. After Young provided a doctor’s note stating that she should not lift more than 20 pounds during her pregnancy, the company’s occupational health manager informed her that she could not continue working because the company’s policy did not provide for light duty work based on pregnancy.
Young sued UPS for discrimination, claiming that the policy limiting light duty work to some employees but not to pregnant workers violated the PDA. The Fourth Circuit Court of Appeals, which hears cases from both South and North Carolina, ruled in favor of UPS, holding that “where a policy treats pregnant workers and non-pregnant workers alike, the employer has complied with the PDA.” The court noted that, under Young’s interpretation of the PDA, a pregnant employee would be entitled to a light duty assignment, while an employee injured off-the-job would not. The court held that such a result would give the pregnant employee impermissible preferential treatment over similarly-situated, non-pregnant employees, which is not envisioned by the PDA.
Young appealed to the U.S. Supreme Court, which granted her petition for review to address whether the PDA requires an employer that provides work accommodations to non-pregnant employees with work limitations to also provide work accommodations to pregnant employees who are “similar in their ability or inability to work.” The court will hear the case during its upcoming term, and its decision will squarely impact the EEOC guidance.
Sexual Orientation and Gender Identity as Protected Categories
Title VII does not expressly prohibit sexual orientation or gender identity discrimination. Indeed, lawsuits claiming discrimination based on sexual orientation have historically been dismissed on the grounds that sexual orientation is not protected under Title VII. However, courts have increasingly allowed some cases to proceed when they involve allegations of “gender stereotyping” because of Title VII’s prohibition against gender discrimination. Nevertheless, the status of sexual orientation and gender identity as protected categories under Title VII remains unclear.
Similarly, the scope of Executive Order 11246, which prohibits discrimination by federal contractors, did not provide express protection for sexual orientation or gender identity until July, when President Obama signed into law an amendment to the order.
Prior to the amendment, Executive Order 11246 prohibited government contractors from discriminating against an employee or applicant for employment because of race, color, religion, sex, or national origin. Obama’s amendment added sexual orientation and gender identity as protected categories. It also requires that the contractor take affirmative action to ensure that “employees are treated during employment, without regard to their race, color, religion, sex, sexual orientation, gender identity, or national origin.”
The order also amended Executive Order 11478, which provides for equal employment opportunity in the federal government. While President Bill Clinton had previously amended this provision to include sexual orientation as a protected category, Obama amended the provision to add gender identity as well.
Obama declined to extend an existing exemption for religiously-affiliated employers. Currently, religiously-affiliated federal contractors are allowed to consider an employee’s, or prospective employee’s, religion when making employment decisions without running afoul of the anti-discrimination provisions. Obama did not provide a similar exemption for religious employers when it comes to considering an employee’s sexual orientation or gender identity, specifying that, notwithstanding the religion exception, “contractors and subcontractors are not exempted or excused from complying with the other requirements contained in this Order.”
Employers should continue to watch these issues closely. While the EEOC has provided helpful guidance for employers with regard to the PDA, the Supreme Court could answer some lingering questions about the act and an employer’s obligation thereunder when it hears the Young case later this year. Additionally, employers should be aware that, although Title VII does not expressly address sexual orientation and gender identity as protected categories, many courts are increasingly treating them as protected under Title VII.