On July 14, 2014, the U.S. Equal Employment Opportunity Commission (EEOC) issued new Enforcement Guidance on Pregnancy Discrimination and Related Issues (guidance). It is the first comprehensive update to the EEOC’s Compliance Manual on the topic since 1983. The guidance was accompanied by a Q&A document and a Fact Sheet for small businesses.
The release of the new guidance has not been without controversy, as it almost certainly means an imposition of greater requirements on employers. Two of the EEOC’s five members — Constance S. Barker and Victoria A. Lipnic — voted against the release of the guidance. In her opposition statement, Commissioner Lipnic expressed concern that the guidance was not made available for public comment and described the EEOC’s guidance as legislative rather than interpretive. In a separate opposition statement, Commissioner Barker stated that the guidance “offered a novel interpretation of the PDA for which there was no legal basis.”
What does the guidance cover?
The guidance explains the requirements of Title VII of the Civil Rights Act (Title VII), as amended by the Pregnancy Discrimination Act (PDA) and the Americans with Disabilities Act (ADA), as it applies to workers with pregnancy-related disabilities. The guidance also touches on other federal laws affecting pregnant workers.
What employers are affected by the guidance?
As mentioned above, the guidance covers Title VII (as amended by the PDA) and the ADA, both of which apply to private and state and local government employers with 15 or more employees, labor organizations, employment agencies, and apprenticeship and training programs.
Most of the analysis in the guidance is an update of longstanding policy. The guidance sets forth the fundamental requirements of the PDA that an employer may not discriminate against an employee on the basis of pregnancy, childbirth, or related medical conditions; and that women affected by pregnancy, childbirth, or related medical conditions must be treated the same as other persons similar in their ability or inability to work. The guidance also explains how the ADA’s definition of “disability” may apply to workers with impairments related to pregnancy.
Specifically, as stated in the EEOC’s press release, the guidance addresses:
- The fact that the PDA covers not only current pregnancy, but discrimination based on past pregnancy and a woman’s potential to become pregnant.
- Lactation as a covered pregnancy-related medical condition.\
- The circumstances under which employers may have to provide light duty for pregnant workers.
- Issues related to leave for pregnancy and for medical conditions related to pregnancy.
- The PDA’s prohibition against requiring pregnant workers who are able to do their jobs to take leave.
- The requirement that parental leave (which is distinct from medical leave associated with childbearing or recovering from childbirth) be provided to similarly situated men and women on the same terms.
- When employers may have to provide reasonable accommodations for workers with pregnancy-related impairments under the ADA and the types of accommodations that may be necessary.
Concerns for employers
The guidance should raise some concerns for employers because the EEOC has taken a couple of controversial positions that arguably impose greater requirements on employers than required under the requisite federal statutes and existing case law. For example, when interpreting the second fundamental requirement of the PDA — that women affected by pregnancy, childbirth, or related medical conditions must be treated the same as other employees who are similar in their ability or inability to work but are not affected by pregnancy, childbirth, or related medical conditions — the EEOC states that “an employer is obligated to treat a pregnant employee temporarily unable to perform the functions of her job the same as it treats other employees similarly unable to perform their jobs, whether by providing modified tasks, alternative assignments, leave or fringe benefits.” While this statement appears in the section on the PDA, the analysis is one of reasonable accommodation under the ADA. In the discussion that follows, the EEOC essentially takes the position that while pregnancy itself is not a disability under the ADA, the requirements of the PDA include that all pregnant workers are entitled to a “reasonable accommodation” as defined by the ADA.
Another position taken by the EEOC is that Title VII (as amended by the PDA) requires employers to “cover prescription contraceptives on the same basis as prescription drugs, devices, and services that are used to prevent medical conditions other than pregnancy.” This appears to stand in direct conflict with the Supreme Court’s recent decision in Burwell vs. Hobby Lobby Stores, Inc., 723 F.3d 1114 (2014), which held that certain employers may not lawfully be compelled to provide all forms of contraception.
While the EEOC’s guidance is not binding on courts, it does show how the agency will handle claims of pregnancy discrimination. Interestingly, we will soon see exactly how much deference the United States Supreme Court gives to the guidance. On July 1, 2014, just a few weeks before the guidance was released, the Supreme Court agreed to review the decision in Young v. United Parcel Service, 707 F.3d 437 (4th Cir. 2014). This case will determine whether and to what extent an employer must provide pregnant employees with work accommodations, such as light duty, under the PDA. The case will be heard in the Supreme Court’s 2014-2015 term.
It is highly recommended that employers familiarize themselves with the guidance. The guidance provides some useful examples of the nondiscrimination principles under the PDA and also lists some suggested best practices for employers on how to avoid claims of pregnancy discrimination (the EEOC concedes they “go beyond federal nondiscrimination requirements” but may “decrease complaints of unlawful discrimination and enhance employee productivity”).