Recent EEOC Guidance Calls for Reasonable Accommodation of Normal Pregnancy

by Faegre Baker Daniels
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In July 2014, the Equal Employment Opportunity Commission (EEOC) took the position, in controversial Enforcement Guidance, that the federal Pregnancy Discrimination Act (PDA) requires employers to treat women with normal pregnancies and lactating women the same as other employees who are similar in their ability or inability to work. The guidance effectively requires employers to provide reasonable accommodation for normal pregnancy and lactation to employees who are not "disabled" as defined under the Americans with Disabilities Act (ADA). So, for example, if an employer provides disabled employees accommodations such as more frequent breaks, adjusted work schedules, time off work, or light duty based on their medical conditions, the EEOC's stance is that women with normal pregnancies or who are lactating are entitled to similar accommodations as needed. 

The EEOC previously announced that it would be focusing on the issue of accommodation of pregnancy-related limitations under the American with Disabilities Act Amendments Act (ADAAA) and the PDA, and it has been active in enforcing the PDA. Several recent consent decrees settling pregnancy discrimination charges require the employers to make settlement payments to affected employees, post notices of rights, conduct employee trainings, and issue new or revised employee policies.

Meanwhile, however, the Supreme Court is reviewing Young v. United Parcel Service, a case brought by a woman who was allowed to take leave but denied a light-duty assignment during her pregnancy. The employer provided light-duty opportunities for individuals with disabilities under the ADA, but did not do so for women with normal pregnancies or other non-disabled employees with work restrictions. The employee argued that the PDA entitles pregnant women to any benefits provided to non-pregnant workers who have similar work limitations. The Fourth Circuit Court of Appeals rejected that argument, holding that because the employer's light-duty policy was pregnancy-neutral, it was lawful. If the Supreme Court affirms the Fourth Circuit holding, the decision would overrule much of the new Enforcement Guidance (which, in any event, does not have the force of law, although courts often defer to such guidance in determining how to apply the law).

The EEOC has drawn fire for not providing an opportunity for public comment before issuing the guidance, which passed by a 3-2 vote of the commissioners, divided on party lines. The Pregnant Workers Fairness Act (S. 942/H.R. 1975), now pending in Congress, would give the EEOC position the force of law by amending the PDA to require employers to reasonably accommodate known work limitations relating to pregnancy, childbirth or related medical conditions of job applicants or employees. Passage appears unlikely at this time, however, and some commentators have criticized the guidance as overreaching, with one of the commissioners who voted against the guidance criticizing it as "legislating — a task far beyond our purview." 

Further complicating the compliance challenge that employers face is a growing list of state and local pregnancy accommodation laws. California, Minnesota, New Jersey and several other states have such laws in effect; Illinois has passed a statute that will become effective January 1, 2015; and even some cities such as New York City have enacted such legislation. 

Although the Supreme Court's decision in Young v. United Parcel Service could negate significant portions of the guidance, the guidance also speaks to issues not raised in that case. It discusses contraceptive usage and concludes that, because contraception is a means by which a woman can control her capacity to become pregnant, Title VII necessarily prohibits discrimination related to contraception usage. Additionally, an employer can violate Title VII by providing health insurance excluding coverage of prescription contraceptives; in order to comply with Title VII, an employer's health insurance plan must cover prescription contraceptives "on the same basis as prescription drugs, devices and services that are used to prevent the occurrence of medical conditions other than pregnancy." 

In a footnote, the commission acknowledges the Supreme Court's June 30 decision of Burwell v. Hobby Lobby Stores, Inc., et al., No. 13-354, which held that, under the Religious Freedom Restoration Act, closely held for-profit corporations cannot be required by the Patient Protection and Affordable Care Act to provide group health plan coverage of certain kinds of contraceptives the owners find religiously objectionable. The commission declined to address whether certain employers may also be exempt from this particular Title VII requirement under the First Amendment or the Religious Freedom Restoration Act, leaving uncertainty as to the application of Title VII in a situation similar to that presented in Hobby Lobby.

The guidance also addresses when and how pregnancy-related medical conditions may constitute disabilities under the ADA. A pregnant employee may be entitled to a reasonable accommodation under the ADA for limitations resulting from pregnancy-related conditions that constitute a disability or for limitations resulting from the interaction of the pregnancy with an underlying impairment. The commission provides examples of pregnancy-related limitations, including anemia, sciatica, carpal tunnel syndrome, gestational diabetes, swelling and depression. 

The guidance concludes with "best practices" for employers to reduce their chances of pregnancy-related PDA violations and ADA violations, and to remove barriers to equal opportunity. The commission divided its suggestions into five subcategories: (1) general; (2) hiring, promotion and other employment decisions; (3) leave and other fringe benefits; (4) terms and conditions of employment; and (5) reasonable accommodation. For example, the guidance recommends that employers "State explicitly in any written reasonable accommodation policy that reasonable accommodations may be available to individuals with temporary impairments, including impairments related to pregnancy."

Employers should review their policies and practices to ensure they are compliant with all applicable laws (including Title VII, the PDA, the ADA, the FMLA, and state and local laws), taking this new guidance into account. If any policies or practices conflict with existing law or the new guidance, consult legal counsel to evaluate the appropriate course of action.

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Faegre Baker Daniels
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