Executive Summary: The EEOC has issued new guidance on the reach of the Pregnancy Discrimination Act ("PDA") that greatly expands the protections it claims all employers must provide to pregnant employees. The two most significant new provisions of this guidance are that (1) the PDA requires that pregnant employees be afforded the same job accommodations as Americans with Disabilities Act (ADA) qualifying disabled employees, and that (2) denying a pregnant employee light duty work pursuant to a policy limiting such work to employees injured on the job violates the PDA. Both positions obviously represent significant departures from prior EEOC policy and even case authority.
Key Points: The July 14, 2014 Enforcement Guidance on Pregnancy Discrimination and Related Issues (http://www.eeoc.gov/laws/guidance/pregnancy_guidance.cfm) is the first comprehensive updating of EEOC guidance on pregnancy bias since 1983. The update is likely driven in large part by the Obama Administration's stated intent to effect change through administration and regulation that it has been unsuccessful in effecting through legislation. On paper, however, it is tied to outdated prior guidance, a rise in EEOC charges claiming pregnancy discrimination, and the significant expansion of the class of qualifying disabled employees under the ADA Amendments Act (ADAAA).
The PDA generally requires that women affected by pregnancy, childbirth, and related conditions be treated the same as non-pregnant employees who are similar in their ability or inability to work. In the past, courts have held that the class of "similar" employees does not include ADA-qualified disabled employees or employees injured on the job. This meant that employers did not owe pregnant employees ADA-type accommodations and could enforce "pregnancy-blind" type policies such as light duty only for work-related injuries. But the new EEOC guidance greatly expands the class of employees to whom pregnant employees should be compared and thus purports to bar these prior practices.
Most significantly, the EEOC has now taken the position that an employee who is pregnant without any complication or impairment may still be entitled to an ADA-type reasonable accommodation under the PDA. That is because the EEOC believes that pregnant employees may be "similar in their ability or inability to work" to ADA-qualifying disabled employees and thus should be provided the same accommodations. In other words, employers may not "discriminate" against pregnant employees in favor of disabled employees.
The EEOC also reaffirmed its position that workers with impairments related to pregnancy may qualify as disabled under the ADAAA. It notes that the ADAAA has made it "much easier" for pregnant workers with pregnancy-related impairments to qualify as disabled: "[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." Examples listed within the guidance include disorders of the uterus and cervix which may require bed rest during pregnancy; gestational diabetes; and nausea causing severe dehydration.
Also within this new guidance the EEOC 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. It pointedly states that "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 of limiting light duty to workers injured on the job and/or to employees with disabilities under the ADA." The EEOC acknowledged that this position has not been accepted by some courts, but stated that such decisions are "flawed" because the analysis is too restrictive.
This guidance is obviously controversial. It was approved over the dissension of the two Republican-appointed Commissioners, who objected to both the timing and manner of publication. It also is in jeopardy of being contravened by a forthcoming U.S. Supreme Court case that will consider which workers should be compared to pregnant employees and what treatment pregnant employees are entitled to. And of course there is some existing federal district and circuit court authority that contravenes this guidance.
Despite the controversial nature of the EEOC guidance, several states and municipalities have already enacted laws requiring the type of affirmative accommodation of pregnant employees that the EEOC seems to be trying to impose here. Employers are cautioned always to consult state and local law when evaluating legal obligations.
Employers' Bottom Line: This guidance presents significant practical challenges for air carriers. Work-related light duty policies are common in the industry, but now may need to be expanded to include pregnant employees. Moreover, carriers need to carefully consider whether ADA-type accommodations should now be afforded to pregnant employees regardless of whether they are covered by the ADA. And these practices will need to be revisited as the courts, and particularly the U.S. Supreme Court, consider these issues.