EEOC Guidance on Pregnancy Discrimination Act Stirs Controversy in Form and Content
On June 14, 2014, the Equal Employment Opportunity Commission (EEOC) issued controversial new guidance on the interpretation and application of the Pregnancy Discrimination Act (PDA), a 1978 amendment to Title VII of the Civil Rights Act that prohibits discrimination based on pregnancy, childbirth or related medical conditions. Among other provisions, the guidance sets forth the EEOC's position that employers may be required to provide reasonable accommodations to pregnant employees, employees who are planning to become pregnant and employees who have medical conditions related to pregnancy. The EEOC issued the interpretive guidance just two weeks after the Supreme Court agreed to hearYoung v. UPS—an important case that will clarify an employer's accommodation obligations under the PDA. In light of this timing, commentators have criticized the EEOC for issuing the guidance before the Court has an opportunity to weigh in on the issue. Indeed, depending on how the Court rules in Young, many of the standards set forth in the guidance could ultimately become moot. In addition to the questionable timing of the guidance, the EEOC is also being criticized for voting to publish its own interpretations without first requesting or allowing public review and commentary.
Despite the controversy underlying the issuance of the guidance, nothing is getting more attention than the obligations set forth in the guidance itself. Here are a few of the highlights:
The EEOC's guidance prohibits discrimination on the basis of past pregnancy, current pregnancy and intended pregnancy. As to intended or future pregnancy, an employer could be liable for adverse actions taken on the basis of the following: perceived or actual reproductive risks; an intention to become pregnant; infertility treatments; and/or the use of contraceptives. Notably, the guidance further states that employers can violate Title VII by providing health insurance that excludes coverage of prescription contraceptives. This seems to directly contradict the Supreme Court's recent decision in Burwell v. Hobby Lobby, which exempted a closely held corporation from providing certain contraceptives on religious freedom grounds. However, in a footnote, the EEOC explains that the guidance only addresses Title VII's prohibition against pregnancy discrimination and not whether certain employers may be exempt from Title VII under the Religious Freedom Restoration Act (which was at issue in Hobby Lobby).
According to the EEOC, employers may not discriminate against employees based on medical conditions related to pregnancy or childbirth, including lactation, breastfeeding and abortion.
Under the guidance, employers must treat an employee temporarily unable to perform the functions of her job because of her pregnancy-related condition in the same manner as it treats other employees similar in their ability or inability to work, whether by providing modified tasks, alternative assignments, or fringe benefits such as disability leave and leave without pay. This includes providing pregnant workers or those with pregnancy-related conditions with light-duty work or a leave of absence if the employer does so for other employees with similar limitations.
The guidance also sets forth the EEOC's position on parental leave. Such leave, which is generally offered so that new parents may bond with or care for a new child (as opposed to medical leave under a short-term disability policy), must be provided to men and women on equal terms. Thus, a policy that gives female employees three weeks of parental leave (on top of any disability or medical leave) but gives male employees only one week of parental leave would violate Title VII.
One of the most discussed and debated provisions in the guidance, however, involves the EEOC's position that employers must provide reasonable accommodations to pregnant employees or those with pregnancy-related conditions. Although pregnancy does not automatically qualify as a disability under the Americans with Disabilities Act (ADA), the new guidance certainly tends to import the ADA's accommodation obligations into the PDA—regardless of whether the employee has an ADA-qualifying disability. Under the new guidance, an employer is obligated to treat a pregnant employee who is temporarily unable to perform the functions of her job the same as it treats other employees similarly unable to perform their jobs, including those with disabilities.
The guidance further provides, "[a]n employer may not refuse to treat a pregnant worker the same as other employees who are similar in their ability or inability to work by relying on a policy that makes distinctions based on the source of an employee's limitations." For example, the EEOC says that pregnant women with work restrictions must be given light duty if the employer offers light duty, regardless of whether the employer's light-duty program is otherwise limited to employees who are recovering from on-the-job injuries. While employers may have denied light duty to pregnant workers in the past on this basis, the EEOC is taking the position that they may do so no longer—the very issue that is to be decided by the Supreme Court in Young.
In Young, UPS had a policy pursuant to a collective bargaining agreement that provided temporary alternate work (i.e., temporary light duty) to employees "unable to perform their normal work assignments due to an on-the-job injury." Although UPS allowed employees with ADA-qualifying disabilities and those who lost DOT certification to participate in the program, pregnant employees were ineligible if their limitations arose solely as a result of pregnancy. Young, a long-term delivery driver for UPS, became pregnant and had a 20-pound lifting restriction. She could not perform the essential functions of her job and was denied the light-duty program because her restrictions were not caused by an on-the-job injury or illness. Ultimately, Young exhausted her FMLA leave and was left with no choice but to go on an extended leave of absence, receiving no pay and eventually losing her medical coverage. She sued UPS under the ADA, the PDA and other discrimination laws.
The Fourth Circuit ruled in favor of UPS, holding that it did not discriminate against Young on the basis of pregnancy when it was simply applying a "pregnancy-blind" policy. According to the court, by demanding access to the light-duty program, Young was essentially requesting preferential treatment on account of her pregnancy. For example, other employees who had similar lifting restrictions as Young but who were not disabled under the ADA would also be ineligible for the program. Young essentially argued that the PDA requires that a pregnant worker receive whatever accommodations or benefits are accorded to individuals accommodated under the ADA. The EEOC has adopted this very position in its guidance, but the Fourth Circuit and other courts have held that Congress did not intend to advocate such preferential treatment when enacting the PDA.
Until Young is decided by the Court in its next term, employers are cautioned to think twice before denying pregnant workers light duty or other accommodations based on stated policy limitations or based on the conclusion that the employee is not disabled within the meaning of the ADA.
While the status of pregnancy and pregnancy-related accommodation issues may still be up for debate at the federal level, several laws have been passed at the state level that impose obligations similar to what the EEOC's guidance reflects. For example, Illinois House Bill 8 passed both houses in May and was sent to the Governor on June 26, 2014. By all accounts, Governor Quinn will sign the bill. Once the bill becomes law, the Illinois Human Rights Act would be amended effective January 1, 2015, to prohibit pregnancy discrimination and to require employers to provide reasonable accommodations for conditions related to pregnancy, childbirth or related medical conditions. Such reasonable accommodations will likely include providing an accessible worksite, acquisition or modification of assistive equipment, job restructuring and modified work schedules. Similarly, as we reported in our December 2013 newsletter, New York City's Pregnant Workers Fairness Act requires employers in New York City to offer reasonable accommodation for pregnancy, childbirth and related medical conditions.
For the time being, employers should be aware of the EEOC's guidance and applicable state and local laws addressing accommodations for pregnant workers. Employers may want to follow the ADA framework when analyzing requests for accommodations by pregnant employees, by employees attempting to become pregnant, and by employees with medical conditions arising from pregnancy or childbirth. Such employers should engage in the interactive process, gather relevant medical documentation, determine what has been done for employees with similar limitations in the past, and ensure that the requested accommodation does not cause an undue burden. Although pregnancy does not always amount to a disability, the trend at the state level and now at the federal agency level is to apply the ADA’s reasonable accommodation obligations to pregnant employees.