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EEOC Issues New Enforcement Guidance on Pregnancy Bias

Tuesday, July 15, 2014

By Kevin P. McGowan  

July 14 — Partly addressing issues pending before the U.S. Supreme Court, the Equal Employment Opportunity Commission July 14 issued new enforcement guidance under the Pregnancy Discrimination Act that also covers possible workplace accommodation requirements.

The agency adopted the new guidance, which updates a 1983 EEOC Compliance Manual chapter on the PDA, by a 3-2 private vote. EEOC Chair Jacqueline Berrien (D) and Commissioners Chai Feldblum (D) and Jenny Yang (D) approved the measure, while the two Republican commissioners, Constance Barker and Victoria Lipnic, opposed it.

Among other things, the new guidance says the PDA, a 1978 amendment to Title VII of the 1964 Civil Rights Act, requires employers to offer light duty to pregnant employees if they make light duty available to nonpregnant employees similar in their ability or inability to work.

On July 1, the Supreme Court in Young v. United Parcel Service Inc. agreed to review a U.S. Court of Appeals for the Fourth Circuit decision that the PDA doesn't require employers to offer light duty to pregnant employees with work restrictions even if light duty is available for certain categories of nonpregnant employees.

The EEOC in February 2012 held a public meeting on pregnancy and caregiver discrimination, at which witnesses said bias against pregnant workers is still widespread. Some speakers called for updated agency guidance under both the PDA and the amended Americans with Disabilities Act.

“Despite much progress, we continue to see a significant number of charges alleging pregnancy discrimination, as well as the emergence of more subtle discriminatory practices,” EEOC Chair Berrien said in a July 14 statement.

“This guidance will aid employers, job seekers, and workers in complying with the Pregnancy Discrimination Act and the Americans with Disabilities Act, and thus advance EEOC's Strategic Enforcement Plan priority of addressing the emerging issue of the interaction between these two anti-discrimination statutes.”

Dissenters Question Timing, Substance

In her opposition statement, Lipnic questioned the process, timing and substance of the EEOC's new guidance.

She expressed disappointment that the EEOC declined to make a final draft available for public review and comment prior to a vote. She also questioned the wisdom of the agency issuing guidance now, “potentially setting forth standards and practices for employers that may well be mooted in the very near future depending on how the [Supreme] Court decides Young.”

In a separate statement, Barker incorporated an internal May 23 memorandum in which she had urged fellow commissioners not to adopt a draft guidance without public review and comment.

Barker had identified as “fatal flaws” provisions regarding the PDA's purported requirements regarding light duty, accommodations and coverage of contraceptives in employee health benefit plans. She said on each of those issues, the EEOC guidance adopts interpretations of the PDA that aren't supported by the statute or relevant case law.

Barker expressed concern that the new guidance might conflict with a Supreme Court decision in Young, and that the EEOC is trying to “jump the gun” on Congress. The pending Pregnant Workers Fairness Act (S. 942/H.R. 1975) would amend the PDA to expressly require employers to grant reasonable accommodations for pregnant workers.

Given the prospective Supreme Court decision in Young v. UPS, it “seems quite premature” for the EEOC to issue its enforcement guidance at this point, EEAC General Counsel Vann said.

“If the Pregnant Workers Fairness Act is passed, this enforcement guidance should certainly incorporate those new expanded rights for pregnant employees,” Barker said. “However, it is a misuse of [the EEOC's] authority to jump ahead of Congress and attempt a back-door amendment to the PDA by incorporating the concepts of the proposed legislation without waiting for Congress to take the bill under consideration.”

Consistent Reading of PDA, Feldblum Says

Commissioner Feldblum in a statement said that following the agency's February 2012 hearing, she was “a forceful advocate” for the EEOC developing and adopting enforcement guidance “that would address the accommodations that employers are legally obligated to provide to pregnant workers” under the PDA and ADA.

Feldblum said the EEOC's position regarding light duty, although at odds with the Fourth Circuit and other federal appeals courts, is consistent with “a plain text reading” of the PDA as well as the EEOC's “long-standing interpretation of pregnancy discrimination—both before and after the enactment of the PDA.”

Feldblum said she is “pleased” Barker and Lipnic issued their statements and “would have welcomed” discussing their respective views in an EEOC public meeting.

But Feldblum said she strongly disagreed with the two commissioners that the EEOC should await a Supreme Court decision in Young before issuing its views on the PDA.

She also disputed Barker's comment that the EEOC guidance “elevates pregnant employees to a kind of super-status above that of individuals with disabilities.”

“Equal treatment, regardless of an individual's physical or mental limitations or perceived limitation, has always been at the heart of the disability rights movement,” Feldblum said. “The [EEOC's] enforcement guidance released today does nothing to undercut that goal. If anything, the guidance furthers that goal by explicating the accommodations that are required for an additional group of workers that Congress was also concerned about—pregnant workers.”

Mixed Reactions to Guidance

Rae Vann, general counsel of the Equal Employment Advisory Council in Washington, which represents large employers, said she was “rather surprised” the EEOC would issue new guidance without seeking “any input or feedback” from the public on a draft beforehand.

Given the prospective Supreme Court decision under the PDA, it also “seems quite premature” for the EEOC to issue its enforcement guidance at this point, Vann told Bloomberg BNA July 14.

The guidance imports into the PDA the ADA's reasonable accommodation obligation under a disparate treatment analysis, David Fram said. There's no reason the commission couldn't similarly import the FMLA's leave obligations into the ADA's requirement of leave as a reasonable accommodation, added Fram, of the National Employment Law Institute.

It “speaks volumes” that Lipnic, who has joined the commission's Democrats in the past issuing prior enforcement guidance, voted against publishing this new guidance under the PDA, Vann said.

But the National Women's Law Center in Washington applauded the EEOC for “shining a welcome spotlight” on an “insidious problem” of pregnancy discrimination.

“If a pregnant worker has a medical need for a temporary change at work, too many employers refuse to comply, even as they provide accommodations for workers who need them because of disability or injury,” said Emily Martin, the center's vice president and general counsel.

“As a result, too many pregnant workers are forced to choose between risking their own health and pregnancy to keep their jobs or losing their income at the moment their families can least afford it.”

The EEOC's guidance “makes clear that current law provides the solution to this seemingly intractable problem and employers need to abide by it,” Martin said in a July 14 statement. “And it is a wake-up call to employers who force pregnant workers off the job: you are violating the law.”

The EEOC's guidance is a “long-awaited” and “much needed” measure that clarifies pregnant workers' rights under the PDA and the ADA, said Vicki Shabo, vice president of the National Partnership for Women & Families in Washington.

Importing ADA Standards Into the PDA

Statements in the EEOC guidance's regarding when pregnancy might be an ADA-covered disability are “very predictable” given the ADA Amendments Act's broadened definitions, said David Fram, director of ADA and equal employment opportunity services for the National Employment Law Institute in Denver.

But what's “much more important” is that the EEOC guidance imports into the PDA the ADA's reasonable accommodation obligation under a disparate treatment analysis, Fram told Bloomberg BNA July 14.

The EEOC effectively is saying whether a pregnant employee has a disability is irrelevant for reasonable accommodation purposes because an employer must accommodate a pregnant employee with work restrictions under the PDA if it accommodates nonpregnant employees similar in their ability or inability to work, Fram said.

This is the first instance in which the EEOC has imported an obligation under one federal statute—the ADA's reasonable accommodation requirement—into another law, the PDA, based on a disparate treatment analysis, Fram said.

Fram suggested that in the future, there's no conceptual reason the EEOC couldn't similarly import the Family and Medical Leave Act's leave obligations into the ADA's requirement of leave as a reasonable accommodation, for example.

Light Duty, Leave and Benefits Addressed

In a question-and-answer sheet issued along with the new enforcement guidance, the EEOC said the PDA requires an employer to offer temporary light duty to a pregnant employee with work restrictions if the employer provides such an accommodation to nonpregnant employees similar to the pregnant employee in their ability or inability to work.

An employer may not deny light duty to pregnant employees on the grounds such an accommodation is only offered to workers injured on the job because such a distinction based on source of impairment would violate the PDA, the EEOC said.

The EEOC addressed the criticism that its PDA interpretation would grant preferential treatment to pregnant employees, at odds with the statute's intent.

“Consistent with the language of the law, the EEOC's position is that the PDA requires only that an employer treat pregnant workers the same as it treats workers who are not pregnant but are similar in their ability or inability to work,” the agency said. “Thus, an employer may offer light duty to pregnant employees on the same terms that it offers light duty to other workers similar in their ability or inability to work.”

Under the PDA, an employer may not force an employee to take leave because she is pregnant, as long as she is able to perform the job, the EEOC said. The PDA also requires employers to allow employees with physical limitations resulting from pregnancy to take leave on the same terms and conditions as nonpregnant employees similar in their ability or inability to work, the EEOC said.

Citing the Affordable Care Act and the PDA, the EEOC said 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.

The EEOC acknowledged the recent Supreme Court decision in Burwell v. Hobby Lobby Stores Inc., which held that under the Religious Freedom Restoration Act, closely held corporations with sincere religious objections need not comply with the ACA's contraceptive mandate (2014 BL 180313, 123 FEP Cases 621 (2014)).

“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 [Religious Freedom Restoration Act] or under the Constitution's First Amendment,” the EEOC said.

Interaction With the ADA

The EEOC's new enforcement guidance also explains how the ADA Amendment Act's definition of “disability” might apply to pregnancy.

In its Q&A sheet, the EEOC said under some circumstances, employees with pregnancy-related impairments may be covered by the ADA.

“Although pregnancy itself is not an impairment within the meaning of the ADA and thus is not a disability, pregnant workers and job applicants are not excluded from the ADA's protection,” the EEOC said. “Changes to the definition of the term ‘disability' resulting from the enactment of the ADA Amendments Act of 2008 make it much easier for individuals with pregnancy-related impairments to demonstrate that they have disabilities and are thus entitled to the ADA's protection.”

Pregnancy-related impairments are ADA-covered disabilities if they substantially limit one or more major life activities, including walking, standing and lifting, as well as “major bodily functions” that include the cardiovascular, circulatory and reproductive systems, the EEOC said.

The ADA also could apply if an employer regards a pregnant employee as having a disability, the EEOC said.

The EEOC provided examples of pregnancy-related impairments that may substantially limit major life activities, such as pregnancy-related sciatica, gestational diabetes, and preeclampsia causing high blood pressure.

An employer also can violate the ADA by discriminating against a job applicant or employee based on a past history of pregnancy-related impairments, such as gestational diabetes in prior pregnancies, the EEOC said.

Reasonable accommodations for pregnant employees could include redistributing a pregnant employee's marginal or nonessential job functions among other employees, granting a pregnant employee more frequent breaks, altering schedules so a woman with morning sickness could start work later and leave later to make up the time, or allowing a pregnant employee placed on bed rest to work from home to the extent feasible, the EEOC said.

The EEOC also issued a fact sheet for small businesses outlining the PDA's and ADA's requirements regarding pregnant employees.

To contact the reporter on this story: Kevin P. McGowan in Washington at kmcgowan@bna.com

To contact the editor responsible for this story: Susan J. McGolrick at smcgolrick@bna.com

Text of EEOC's enforcement guidance is available at http://www.eeoc.gov/laws/guidance/pregnancy_guidance.cfm, the Q&A at http://www.eeoc.gov/laws/guidance/pregnancy_qa.cfm, and the fact sheet at http://www.eeoc.gov/eeoc/publications/pregnancy_factsheet.cfm. Text of Feldblum's statement is available at http://op.bna.com/dlrcases.nsf/r?Open=kmgn-9lztwz, Barker's statement at http://op.bna.com/dlrcases.nsf/r?Open=kmgn-9lznp5, and Lipnic's statement at http://op.bna.com/dlrcases.nsf/r?Open=kmgn-9lznpp.

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