EEOC Issues Enforcement Guidance on Pregnancy Discrimination Act

by Susan G. Fentin

Employers’ obligations under the Pregnancy Discrimination Act have been in the news this month.  This week, the EEOC issued new Enforcement Guidance on the Pregnancy Discrimination Act (“PDA”).  This announcement from the EEOC follows hard on the heels of the United States Supreme Court’s July 1 decision, agreeing to hear Young v. UPS, a case thatarises out of an employer’s decisions regarding a pregnant employee who was unable to perform the essential functions of her position.  The specific question before the Court in the Young case is whether and in what circumstances an employer that provides work accommodations to non-pregnant employees with work limitations must provide work accommodations to pregnant employees who are “similar in their ability or inability to work” to other employees with similar work restrictions.  Yesterday, the EEOC issued its PDA Enforcement Guidance that appears to try to answer this question for the Court.

The PDA was enacted to extend the protections of Title VII to encompass pregnancy, childbirth or related medical conditions, considering discrimination based on those circumstances to be a form of sex discrimination in violation of Title VII.  The Court decided that the question in Young was significant enough to merit review, even though the U.S. Solicitor General had asked the Court not to hear the case: the Solicitor General knew that the Equal Employment Opportunity Commission was about to issue new Enforcement Guidance on the Pregnancy Discrimination Act (“PDA”), and the Solicitor General wanted the Court to wait to rule on this issue the EEOC guidance.

The issue in Young involves a UPS policy that limits light duty assignments to individuals with work-related injuries or those who are considered disabled under the ADA.  Peggy Young’s doctor imposed lifting restrictions during her pregnancy, and UPS said that it couldn’t accommodate those restrictions because it reserved light duty positions for employees who were injured on the job or disabled under federal law.  Young was forced to take unpaid leave from her job and lost her health insurance, but returned to work at UPS after her baby was born.  Her suit against UPS was dismissed by the Fourth Circuit Court of Appeals on the grounds that a pregnant worker with a temporary lifting restriction isn’t “similar in her ‘ability or inability to work’ ” to other types of employees for whom UPS willingly provided light duty, including employees with ADA disabilities, those who had been injured on the job, or drivers who had lost their DOT certification.  UPS’ argument is that its policy is “pregnancy blind” and that it is not discriminatory, and the Fourth Circuit agreed.  The decision was appealed to the Supreme Court, which has accepted the case for its 2014-2015 term.

Of course, now that the EEOC guidance has been issued, the Court could rescind its decision.  That’s because, among other topics, the new enforcement guidance specifically covers the issue pending before the Court: whether a pregnant employee is entitled to light duty if her employer would grant a light duty assignment to other workers who are subject to the same work restrictions.

The EEOC Guidance

Although the EEOC’s PDA Enforcement Guidance does not have the force of law, it’s generally considered persuasive by the federal courts.  So the provisions of this new Guidance are significant for employers who are considering their obligations to their pregnant workers.  There are a number of provisions that are not surprising or potentially problematic:

  • The Guidance makes it clear that the Title VII protects women who are currently pregnant, have been pregnant, could potentially become pregnant or are trying to become pregnant, and medical conditions that result from pregnancy.
  • Employers may not make decisions about pregnant employees based on stereotypes, assumptions, or fears that a pregnant worker could harm herself or her baby by continuing to perform her job.
  • Employees who are breastfeeding or lactating are also considered protected under the Title VII.
  • Employers may not discriminate against employees who have had or are contemplating an abortion.
  • The Guidance also cautioned employers against making employment decisions based on a woman’s potential caregiving responsibilities.

Potentially Problematic Provisions

However, some of the provisions of the new Guidance could be potentially problematic for employers.  The Guidance points out that even a facially neutral policy, such as a weight lifting requirement, could have a disproportionate impact on pregnant women.  Although such disparate impact cases generally require a statistical showing, the Guidance suggests that statistical evidence might not be required if it could be shown that all or substantially all pregnant women would be negatively affected by the policy.  To defend such a claim, an employer must be able to show that the requirement is “necessary to safe and efficient job performance.”   Moreover, even if the employer can show that necessity, it can still be held liable if there is a less discriminatory alternative that would meet the employer’s legitimate business need, and the employer refuses to implement it.

Similarly, a company policy, such as the UPS policy in Young, can be considered a violation of the PDA if it denies light duty or other accommodations to pregnant women while granting those benefits to other employees who are similarly restricted in their ability to perform essential functions of their jobs.  Indeed, the Guidance specifically states that

a pregnant worker with a work restriction who challenges a denial of light duty should be able to establish a prima facie case of discrimination . . . by identifying any other employee who is similar in his or her ability or inability to work and who was treated more favorably, including employees injured on the job and/or covered by the ADA.

In this section of the Guidance, the EEOC specifically rejected the idea that “the PDA does not require an employer to provide light duty for a pregnant worker if the employer has a policy or practice limiting light duty to workers injured on the job and/or to employees with disabilities under the ADA.”

In addition, the new Guidance states that a policy that restricts sick leave might also have a disparate impact on pregnant women.  The Guidance includes examples where a 10-day ceiling on sick leave and a policy denying sick leave during the first year of employment have been found to disparately impact pregnant women.  The Guidance also underscores the impact of the 2008 amendments to the ADA, noting that while pregnancy itself is not a disability, pregnancy-related impairments may be disabilities under the new version of that statute.  Of course, this is not news to Massachusetts employers, who have long been required to consider pregnancy-related conditions as disabilities under state law.  And the Guidance specifically states that 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,” although the EEOC concedes that it does not address whether an employer may maintain a religious exemption from this requirement, as dictated in the Supreme Court’s recent Hobby Lobby decision.

The new Enforcement Guidance is available at http://www.eeoc.gov/laws/guidance/pregnancy_guidance.cfm.  The EEOC has also published a fact sheet for small employers at http://www.eeoc.gov/eeoc/publications/pregnancy_factsheet.cfm

Bottom Line

Employers should exercise caution when making decisions about the ability of pregnant employees to perform the essential functions of their positions.  If an employer cannot accommodate any worker with a lifting restriction, regardless of whether or not that employee is female and pregnant, then a claim for failure to accommodate or pregnancy discrimination will not likely be successful.  But in light of this new Guidance, employers whose light duty policies are limited to certain individuals, such as those with work-related injuries, should be careful when determining whether they will make a light duty position available to a pregnant worker with work restrictions.  And Massachusetts employers should continue to engage in the interactive process with their pregnant workers to determine whether there are any accommodations that would allow a pregnant worker with a restriction to perform the essential functions of her job.

Skoler Abbott will be scheduling a breakfast briefing on this important topic in the near future.  If you have any questions about the new enforcement guidance, please contact any one of the labor and employment attorneys at Skoler, Abbott & Presser, P.C.

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