Oct 07, 2014

On July 14, 2014 the Equal Employment Opportunity Commission released Enforcement Guidance relating to pregnancy discrimination.  In its guidance, the EEOC takes the position that the law requires employers to provide reasonable accommodations to employees with work restrictions resulting from pregnancy, despite the fact that pregnancy itself is not a disability as defined by the Americans with Disabilities Act (“ADA”), if they are providing such accommodations to disabled workers with similar restrictions.  The EEOC’s guidance effectively gives even those who do not have a disability, the same right to reasonable accommodations as individuals with disabilities. The EEOC’s guidance further expresses its belief that the Pregnancy Discrimination Act (“PDA”) and the ADA mean the following with respect to pregnancy in the workplace:

• Employers may not discriminate based on current pregnancy (including stereotypes and assumptions about the job capabilities and commitment to the job of pregnant women), past pregnancy, or potential or intended pregnancy (including reproductive risk and infertility treatment).

• Employers may not discriminate against female employees based on their decision to use contraceptives. 

• “Employers can violate Title VII by providing health insurance that excludes coverage of prescription contraceptives, whether the contraceptives are prescribed for birth control or for medical purposes.” This statement appears to be in direct conflict with the U.S. Supreme Court’s recent holding in Burwell v. Hobby Lobby Stores, Inc. that compelling certain employers to provide contraceptive coverage violates the Religious Freedom Restoration Act (RFRA). The EEOC did acknowledge the opinion in a footnote, stating that “[t]his 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 First Amendment or the RFRA.”

• Employers must allow lactating employees “the same freedom to address…lactation related needs that…co-workers would have to address other similarly limiting medical conditions.”

• Employees are protected from being terminated for having, contemplating, or deciding not to have an abortion.  It is also unlawful for an employer to pressure an employee to have or not have an abortion.

• Individuals affected by pregnancy, childbirth, or related medical conditions must be treated the same for all employment-related purposes as other persons not so affected but “similar in their ability or inability to work.”  Accordingly, if light duty is provided to non-pregnant workers “similar in their ability or inability to work,” light duty must also be provided to pregnant employees.

• Parental leave must be provided to similarly situated men and women on the same terms.

• Employers who offer health insurance must include coverage of pregnancy, childbirth, and related medical conditions and must apply the same terms and conditions for pregnancy-related costs as for medical costs unrelated to pregnancy.

• The ADA Amendments Act’s expanded definition of “disability” includes, in some circumstances, temporary pregnancy-related medical issues such as pregnancy-related back pain, kidney conditions, high blood pressure, or abdominal pain or complications from a non-pregnancy-related issue for which an employee is unable to take medication during her pregnancy.   Employers must therefore provide reasonable accommodations for these issues unless doing so would result in undue hardship.

The reaction to this guidance has been unsurprisingly strong and mixed.  Some are hailing it as “long-awaited” and “much needed” while others vehemently oppose it.  The EEOC itself is divided, with two of the commissioners issuing public statements criticizing the majority’s view of the law and questioning the timing of the guidance. 

Commissioner Constance Barker believes that the guidance suffers from “fatal flaws” including its “novel interpretation of the PDA for which there is no legal basis.”  Barker further accused the EEOC of trying to “jump the gun” on Congress, noting that the pending Pregnant Workers Fairness Act would amend the PDA to require employers to provide reasonable accommodations to pregnant workers and stating that “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.”  Finally, Barker, like many commentators, is displeased with the failure of the EEOC to make the guidance available to the public for review and comment before presenting it to the commissioners for voting.

Commissioner Victoria Lipnic’s public statement specifically points to the U.S. Supreme Court’s agreement to review the Fourth Circuit’s decision in Young v. United Parcel Service, Inc., which presents the issue of whether, and in what circumstances, the PDA requires an employer that provides work accommodations to non-pregnant employees with work limitations to provide work accommodations to pregnant employees who are “similar in their ability or inability to work.”   Specifically, Lipnic questions the wisdom of issuing guidance that is “potentially setting forth standards and practices for employers that may well be mooted in the very near future depending on how the Court decides Young.” 

Regardless of the negative reactions from two of the EEOC commissioners, it appears that the EEOC plans to focus significant attention on pregnancy-related discrimination.  Pending the outcome of the Young case, employers may want to review and update their accommodation policies and practices.