Earlier this week, the EEOC issued new enforcement guidance on pregnancy discrimination, warning employers of their obligation to provide pregnant employees reasonable accommodations in the workplace and giving employers insight into how the EEOC will enforce pregnancy-related issues under Pregnancy Discrimination Act (PDA) in the future.
As expected, the guidance confirms that the EEOC will broadly interpret when pregnancy-related conditions will be considered disabilities under the Americans with Disabilities Act (ADA). Also, for the first time, the EEOC takes the position that the PDA requires employers to offer temporary light duty assignments to pregnant employees with work restrictions if the employer provides the same accommodation to non-pregnant employees who have similar work restrictions.
Notably, requiring employers to provide a reasonable accommodation to all pregnant employees does not appear to find any explicit statutory reference in the text of Title VII, the ADA or the PDA. Yet, this changes under the EEOC’s Guidance. In light of the broad expansion of covered disabilities under the ADA Amendments Act, a number of pregnancy-related impairments arguably will be considered disabilities (e.g., gestational diabetes or preeclampsia), thereby making the employee eligible to obtain a reasonable accommodation under the ADA similar to any other individual with a disability. The EEOC’s Guidance, however, takes this even further, requiring reasonable accommodations for pregnant employees even if their impairments do not rise to the level of a disability under the ADA. The Guidance seems to boil down to this critical provision:
By enacting the PDA, Congress sought to make clear that ‘pregnant women who are able to work must be permitted to work on the same conditions as other employees; and when they are not able to work for medical reasons, they must be accorded the same rights, leave privileges and other benefits, as other workers who are disabled from working.’ The PDA requires that pregnant employees be treated the same as non-pregnant employees who are similar in their ability or inability to work.
Why Has the EEOC Issued this Guidance Now?
This Guidance was last updated in 1983. However, the EEOC recently has identified pregnancy discrimination claims as a priority in its enforcement efforts. During FY2013 alone, more than 5,300 charges were filed with the EEOC alleging pregnancy discrimination. In announcing the updated guidance, EEOC Chair Jacqueline A. Berrien affirmed that the EEOC continues to process a significant number of charges alleging pregnancy discrimination, and stated that the EEOC’s investigations have purportedly “revealed the persistence of overt pregnancy discrimination, as well as the emergence of more subtle discriminatory practices.” This new guidance, which was forecasted last month on our blog, is evidence of the EEOC’s priorities in this area.
The Specifics of the EEOC’s Guidance
The updated enforcement guidance begins by reaffirming the fundamental requirements under the PDA that an employer cannot discriminate against an employee on the basis of pregnancy, childbirth, or related medical conditions; and that female employees affected by pregnancy, childbirth or related medical conditions must be treated the same as other employees who are similarly situated in their ability or inability to work. The remainder of the guidance is divided into four parts:
Part I provides guidance on the prohibition against pregnancy discrimination, including the individuals to whom the PDA applies, the ways in which violations of the PDA can be demonstrated, and the PDA’s requirement that pregnant employees be treated the same as employees who are not pregnant but who are similar in their ability or inability to work, focusing especially on light duty and leave policies;
Part II addresses the impact of the ADA’s expanded definition of “disability” on employees with pregnancy-related impairments, particularly when employees with pregnancy-related impairments would be entitled to reasonable accommodation, and describes specific accommodations for pregnant employees;
Part III briefly describes requirements beyond the PDA and the ADA that affect pregnant employees, including the Family and Medical Leave Act and relevant state laws; and
Part IV contains best practices for employers.
The updated guidance provides the EEOC’s position on a number of key issues that substantially impact employers, including:
The fact that the PDA covers not only current pregnancy, but discrimination based on past pregnancy and a woman’s potential to become pregnant;
Lactation as a covered pregnancy-related medical condition under the ADA;
The circumstances under which employers may have to provide light duty for pregnant workers;
Issues related to leave for pregnancy and for medical conditions related to pregnancy;
The PDA’s prohibition against requiring pregnant workers who are able to do their jobs to take leave;
The requirement that parental leave (which is distinct from medical leave associated with childbearing or recovering from childbirth) be provided to similarly situated male and female employees on the same terms;
The circumstances under which employers may have a duty to provide reasonable accommodations for workers with pregnancy-related impairments under the ADA and the specific types of accommodations that may be necessary; and
Best practices for employers to avoid unlawful discrimination against pregnant workers.
In addition to its Enforcement Guidance, the EEOC also published a question and answer document about the updated Guidance and an employer fact sheet.
Highlighting the import of this new guidance, several EEOC Commissioners have issued statements of their own. In support of the guidance, Commissioner Chai Feldblum provided fairly thoughtful commentary, stating that the Enforcement Guidance “is simple and relies on a plain text reading of the PDA—the words of the statute require that employers treat pregnant employees the same as they treat other employees similar in their ability or inability to work.” You can read her full statement here. “There’s a reason we needed to update the guidelines, and that’s because this problem hasn’t gone away,” Commissioner Feldblum told the Washington Post. “This is an enduring problem in America’s workplaces – we’re not where we need to be with regard to fair, equal treatment of pregnant workers. We’re just not.”
Other EEOC Commissioners, Victoria Lipnic and Constance Barker, criticized the Guidance, arguing that it was issued without public comment and review and that it was published prematurely given that the Supreme Court will be taking these issues up in Young v. UPS, which will be argued before the Court next term. The Young case focuses on whether, and in what circumstances, the PDA requires an employer that provides work accommodations to non-pregnant employees with work limitations to also provide work accommodations to pregnant employees with similar work limitations. For more information on the case, see my colleagues’ review here.
Dads Need Lovin’ Too!
Despite its attention to pregnant employees in the Guidance, the EEOC also warned employers to avoid treating men and women differently when it comes to parental leave (i.e., leave for purposes of bonding with a child and/or providing care for a child). The EEOC summed it up this way:
Leave related to pregnancy, childbirth, or related medical conditions can be limited to women affected by those conditions. However, parental leave must be provided to similarly situated men and women on the same terms. If, for example, an employer extends leave to new mothers beyond the period of recuperation from childbirth (e.g. to provide the mothers time to bond with and/or care for the baby), it cannot lawfully fail to provide an equivalent amount of leave to new fathers for the same purpose.
Will the Supreme Court Even Consider the EEOC’s Guidance when Deciding Young v. UPS?
Good question. In this past year alone, there is Supreme Court precedent for chucking EEOC guidance. For example, in Vance v. Ball State University, the Supreme Court rejected the EEOC’s expansive definition of “supervisor” and held that an employee is a supervisor only if the employer has empowered the employee to take tangible employment actions against the employee). Another was Univ. of Texas Southwestern Med. Ctr. v. Nassar, in which the Court rejected the EEOC’s position that retaliation claims under Title VII were subject to the “motivating factor” causation standard.
It does not seem likely that the Court will put a whole lot of stock in the Guidance, and the parties have already indicated that it does not weigh much on their case.
Insights for Employers
The EEOC’s guidance is groundbreaking, and its impact will affect the manner in which employers provide accommodations to their employees. Clearly, the impact of the Guidance is felt most by employers in its requirement that they now are required to provide reasonable accommodations (including light duty and leaves of absence) for all pregnant employees, regardless of whether they are defined as “disabled” under the the ADA.
Due to the EEOC’s continued scrutiny and enforcement focus on pregnancy discrimination, and the agency’s broad interpretation of employers’ obligations under federal law, employers are well-advised to review their accommodation policies and practices as soon as possible to minimize exposure to pregnancy discrimination claims. A fellow blogger, Eric Meyer, also offers some additional takeaways for employers that are worth the read.
In the meantime, there aren’t any warm and fuzzies here. This is serious stuff, and employers should heed the EEOC’s Guidance, unless the Supreme Court tells us otherwise — a proclamation which may come by June 2015.
* Thanks to my colleague, David Weldon, for his contributions to this blog post!