The EEOC announced July 14, 2014, that it has published, based on a 3-2 vote, its Enforcement Guidance on Pregnancy Discrimination and Related Issues. A copy of the Enforcement Guidance can be found here.
The Enforcement Guidance (Guidance) reiterates basic principles that women cannot be discriminated against because they are pregnant, were recently pregnant or intend to become pregnant, or based on unfounded stereotypes that they may not be physically capable of working while pregnant or that the fetus may be harmed.
The Guidance also addresses more recent issues such as breastfeeding and lactation discrimination, specifically disagreeing with some recent decisions holding that lactation was not a pregnancy-related condition.
The Guidance addresses these and other issues mainly in the context of the Pregnancy Discrimination Act (PDA) and the Americans with Disabilities Act (ADA), although the bulk of the Guidance focuses on the PDA. The Guidance notes that claims of pregnancy discrimination have risen at greater rates than those of women entering the workforce, most of which remain claims that women were discharged on account of their pregnancy.
The Guidance provides numerous scenarios that may be discriminatory and that will be helpful to employers in recognizing risks. Several of these scenarios address discharge while an employee is on pregnancy or parental leave or concern an employer's uniform application of its medical leave policy. The Guidance notes that an employer would not violate the PDA where it treats pregnant employees the same as other employees who exhaust an employer's given medical leave. Still, employers should be careful before terminating a pregnant employee who exhausts medical leave.
The Guidance also addresses an employer's obligation to provide medical leave under the Family and Medical Leave Act (FMLA) and the ADA. Employers are reminded that while a "normal" pregnancy does not constitute a disability, a normal pregnancy is a serious health condition under the FMLA, entitling an eligible employee to leave. In addition, the Guidance reiterates established case law that a pregnancy-related impairment may be a disability under the ADA that requires an employer to grant a reasonable accommodation, including leave.
There are two potential areas of the Guidance that may be overturned or modified by later court decisions:
- That employers must reasonably accommodate a pregnant employee with leave or light duty even where the employee does not have a pregnancy-related medical condition that would count as a disability.
- That an employer who refuses to provide contraception coverage could still be discriminating against women where it provides coverage for other preventative care that is provided to men such as vaccines, blood pressure medication, etc.
The Guidance dedicates a significant amount of discussion to a pregnant employee's access to light duty and takes an expansive view of the PDA with regard to employee access to light duty and an employer's duty to accommodate a pregnant employee.
The PDA requires an employer to offer benefits to pregnant workers on the same terms that it offers benefits to other workers "similar in their ability or inability to work." In analyzing this, the EEOC notes that an employer cannot deny a nondisabled pregnant worker light duty where it provides light duty to employees injured at work or who are disabled under the ADA. This part of the Guidance is probably the most controversial and may conflict with a future Supreme Court ruling.
The extent to which an employer must accommodate a pregnant, nondisabled employee has recently been certified to the Supreme Court in Young v. United Parcel Service. We will keep you updated when the Supreme Court rules. In the meantime, employers with light duty policies that only apply to persons injured at work should be aware that the Guidance provided by the EEOC is directly at odds with the law in most jurisdictions. This position is also at odds with the EEOC's own guidance on workers'compensation and the ADA issued in 2000, which is under review by the EEOC but still valid guidance at this point. Employers who wish to continue or establish workers' compensation light duty policies are encouraged to consult with counsel about the risks in light of the fact that this seems to be an enforcement priority for the EEOC.
With regard to the contraception issue, the EEOC acknowledged the recent Supreme Court decision in Burwell v. Hobby Lobby Stores, Inc., which held that private, closely held corporations could refuse to provide contraception coverage if it violated their religious beliefs. The EEOC, however, reiterated its position that all other employers may be liable for violating Title VII if they deny contraceptive coverage.
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