Yesterday, the Equal Employment Opportunity Commission (“EEOC”) issued its first enforcement guidance on pregnancy discrimination and related issues (“the Guidance”) in 31 years. The Guidance, which offers an expanded interpretation of pregnancy discrimination and re-defines the circumstances in which an employer is required to accommodate pregnancy restrictions and lactations, represents a significant departure from the current guidelines. It was issued without public comment and over the stated dissent of two of the Commissioners, with Supreme Court and Congressional action on the horizon.
Failure To Include Contraception in Health Plans and Discrimination Based Upon Possible Pregnancy Constitute Discrimination Under PDA
The Guidance explains that pregnancy discrimination under the Pregnancy Discrimination Act (“PDA”) includes current, past and future pregnancies. While this concept in the abstract may not be novel, the Guidance’s interpretation of discrimination based on future pregnancies includes discrimination based on infertility treatment and use of contraceptives, stating that under Title VII “an inference of unlawful sex discrimination may be raised if, for example, an employee is penalized for taking time off from work to undergo [infertility treatment],” and stating that “a health insurance plan facially discriminates against women on the basis of gender if it excludes prescription contraception but otherwise provides comprehensive coverage.”
In other words, if an employer’s health plan covers preventative care for medical conditions other than pregnancy, such as “vaccinations, physical examinations, prescription drugs that prevent high blood pressure or to lower cholesterol levels, and/or preventative dental care, then prescription contraceptives must also be covered.” This position apparently conflicts with the Supreme Court’s recent decision in Burwell v. Hobby Lobby Stores, Inc., which ruled that the Affordable Care Act’s contraceptive mandate violated the Religious Freedom Restoration Act (“RFRA”) as applied to closely-held for-profit corporations whose owners had religious objections to providing certain types of contraceptives. The EEOC fails to reconcile this apparent conflict, stating only in the Q&A accompanying the Guidance that “EEOC’s Enforcement 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 RFRA or under the Constitution’s First Amendment.”
The Guidance also affirmatively states that certain employer inquiries related to pregnancy are indicative of discrimination. Indeed, the EEOC has stated that it will generally regard inquiries into whether an applicant or employee intends to become pregnant as evidence of pregnancy discrimination where the employer subsequently makes an unfavorable job decision affecting a pregnant worker. The EEOC further elaborates on this position in the Q&A document, answering the question of whether an employer can ask an employee or applicant if she is pregnant or intends to become pregnant as follows: “Although Title VII does not prohibit employers from asking applicants or employees about gender-related characteristics such as pregnancy, such questions are generally discouraged. The EEOC will consider the fact that an employer has asked such a question when evaluating a charge alleging pregnancy discrimination.”
The Pregnancy Discrimination Act Requires Reasonable Accommodations
Significantly, the Guidance requires that employers provide reasonable accommodations to pregnant workers, even in the case of a normal pregnancy. According to the Guidance, while pregnancy itself is not a disability under the Americans with Disabilities Act (“ADA”), the limitations on life activities, even those accompanying an otherwise normal pregnancy, can result in the need for a reasonable accommodation to be provided under the Pregnancy Discrimination Act. A pregnant worker can 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.
In other words, a pregnant employee cannot be denied access to an accommodation, such as light duty work, on the grounds that pregnancy is not a disability if disabled employees with similar restrictions have been permitted to perform such light duty work. For the same reason, employers also may not refuse light duty to pregnant employees where such positions are available because those positions are reserved for on-the-job injuries. In the eyes of the EEOC, the cause of the impairment is irrelevant – all that matters is whether the pregnancy impairments are similar to the impairments of non-pregnant employees that have been accommodated.
Notably, however, judicial and public opinion on the propriety of the EEOC’s position is not far away. The Pregnant Workers’ Fairness Act has been introduced in the House and Senate, and if passed, would achieve the EEOC’s objective in this Guidance by making it an unlawful not to provide a reasonable accommodation to pregnant employees, among other things. Further, the Supreme Court is set to review precisely the issue of what reasonable accommodations must be provided, if any, to pregnant employees pursuant to the Pregnancy Discrimination Act next term when reviewing Young v. United Parcel Service, Inc.
The Guidance further explains that even though pregnancy itself is not a disability, some pregnant workers will have impairments related to their pregnancies that qualify as a disability under the ADA, because “[a]n impairment’s cause is not relevant in determining whether the impairment is a disability.” The Guidance goes on to list several pregnancy complications that may be disabilities within the meaning of the ADA, including but not limited to: cervical insufficiency, anemia, sciatica, carpal tunnel syndrome, gestational diabetes, nausea that can cause severe dehydration, abnormal heart rhythms, leg swelling due to limited circulation, and depression. The Guidance suggests several examples of reasonable accommodations that may be necessary for pregnancy-related disabilities such as: redistributing non-essential duties; altering job duties; modifying workplace policies; purchasing or modifying equipment and devices; modifying work schedules; granting leave; and temporary assignment to a light duty position.
The PDA Also Covers Lactation-Based Discrimination
In addition to the breaks and privacy required to be provided for mothers pursuant to the Affordable Care Act’s amendment to the Fair Labor Standards Act for employers with fifty or more employees, the EEOC Guidance suggests nursing mothers may also have actionable claims under the PDA. Classifying lactation as a “medical condition,” the Guidance states that an employee must have the same freedom to address lactation-related needs that others have to address similarly limiting medical conditions, such as allowing lactating mothers to change their schedules or use sick leave for lactation-related needs if employees are given these allowances for other non-incapacitating medical conditions. The EEOC also sets forth what it believes to be an appropriate, nondiscriminatory minimal amount of time for employees to express milk: “a nursing mother will typically need to breastfeed or express breast milk using a pump two or three times over the duration of an eight-hour workday.”
Disparate Impact Claims Under the PDA
The Guidance also suggests that policies restricting light duty assignments, restrictive leave policies, or indeed even certain job requirements themselves (such as weight lifting requirements) can have a disparate impact on pregnant women, and if such an impact is established, an employer must prove that the policy/requirement is job related and consistent with business necessity. Even where the employer does show that a requirement is necessitated, a PDA violation can still be found if there is a less discriminatory alternative that meets the business need and the employer refuses to adopt it. In the leave context, the EEOC cautions employers that restrictions on leave (such as a policy denying sick leave during the first year of employment or placing a 10 day ceiling on sick leave) that disproportionately impact pregnant women may violate the PDA. It further states that where a disproportionate impact is found, the employer must provide evidence supporting the rationale for the policy and an explanation for why it, in essence, cannot be more generous. The Guidance cites with approval a district court case that refused to find business necessity where an employer provided no leave during the first year of employment due to high turnover rate where the employer could have limited the no leave policy to the first three months alone, as most of the first year turnover occurred during that timeframe.
EEOC’s Suggested Best Practices
The Guidance concludes with several pages of “best practices” for employers to comply with the Guidance. Some of the suggested practices are fairly standard, others more novel and admittedly go beyond what is required by law. Among other things, the EEOC recommends that employers:
Develop policies based on the requirements of the PDA and ADA, and that managers and employees should be trained on those policies as well as employee pregnancy rights;
Respond to complaints promptly, taking precautions to protect participating individuals against retaliation;
Evaluate restrictive leave policies to determine whether they have a disproportionate impact on pregnant women and are necessary for business operations;
Review workplace policies that limit employee flexibility, such as fixed hours of work and mandatory overtime, to ensure that they are necessary for business operations;
Review any light duty policies to ensure pregnant women are given equal access;
State explicitly in any written reasonable accommodation policy that reasonable accommodations may be available to individuals with temporary impairments, including impairments related to pregnancy;
Ensure that employees who are on leaves of absence due to pregnancy have access to training, if desired, while out of the workplace;
When reviewing and comparing applicants’ or employees’ work histories for hiring or promotion, give the same weight to cumulative relevant experience that would be given to workers with uninterrupted service;
Consult with employees who plan to take pregnancy and/or parental leave in order to determine how their job responsibilities will be handled in their absence; and
Do not ask questions about an applicant’s or employee’s pregnancy status, children, plans to start a family, or other related issues during interviews or performance reviews.
The propriety of the issuance of the Guidance has been called into question. It was issued without public comment, with pending legislation and Supreme Court action on the horizon. Regardless, the Guidance shows employers how the EEOC is going to approach pregnancy discrimination charges, at least until the Supreme Court considers the issue next term or Congress acts. At a minimum, employers should review their policies and consult with legal counsel to ensure compliance with policies related to leave, light duty and other accommodations.
The Guidance is available at http://www.eeoc.gov/laws/guidance/pregnancy_guidance.cfm
The fact sheet is available at http://www.eeoc.gov/eeoc/publications/pregnancy_factsheet.cfm
The Q&A is available at http://www.eeoc.gov/laws/guidance/pregnancy_qa.cfm