EEOC Issues Updated Pregnancy Discrimination Enforcement Guidance

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EEOC Issues Updated Pregnancy Discrimination Enforcement Guidance

July 16, 2014

For the first time in thirty years, the U.S. Equal Employment Opportunity Commission (“EEOC”) has issued an Enforcement Guidance regarding the Pregnancy Discrimination Act (“PDA”) and the Americans with Disabilities Act (“ADA”) as they apply to pregnant employees. The Commission approved the Guidance by a 3-2 vote, with Commissioners Constance Barker and Victoria Lipnic voting against it. While Illinois employers have for many years been prohibited by the Illinois Human Rights Act and the PDA from discriminating against pregnant employees, the EEOC’s Enforcement Guidance sheds new light on what the EEOC believes constitutes unlawful discrimination under the PDA, including its opinion regarding an employer’s legal obligation to provide pregnant employees with reasonable accommodations under the PDA and Americans with Disabilities Act (“ADA”).[1] Notably, the Enforcement Guidance was passed without being made available in advance for public review or comment.

Among other things, the Enforcement Guidance stresses several principles that might come as a surprise to employers:
  • The Guidance makes it clear that the PDA prohibits discrimination against employees and applicants based upon a: (1) past pregnancy, pregnancy-related medical condition, or childbirth; (2) current pregnancy, childbirth, or related medical condition (including lactation and breastfeeding); and (3) potential pregnancy, i.e., an employee’s intention or potential to become pregnant (including a woman’s infertility treatments or use of contraception).
  • The Guidance stresses that pregnancy-related conditions, even conditions that stem from routine pregnancies, can be considered disabilities covered by the ADA. Examples of pregnancy-related conditions that could rise to the level of a disability under the ADA include pregnancy-related carpal tunnel syndrome, gestational diabetes, pregnancy-related sciatica, preeclampsia, depression, nausea, and swelling of the legs.
  • As perhaps one of its most controversial aspects, the Guidance provides that employees may have an obligation to reasonably accommodate a pregnant employee with a light duty assignment or other accommodation – even if the pregnant employee does not have a disability.[2] Indeed, the Guidance specifically explains that pregnant employees are entitled to receive reasonable accommodations, like light duty work, even if the employer’s policy limits light duty to employees injured on the job and/or to employees with disabilities under the ADA. This provision is inconsistent with prior court rulings, as well as the Enforcement Guidance the EEOC issued in 2000 on Workers’ Compensation and the ADA. Essentially, the EEOC’s position is that employers must treat pregnant employees the same as non-pregnant employees “similar in their ability or inability to work” and, therefore, employers should compare a woman who has a restriction due to pregnancy to other individuals, including those with a disability, who have similar restrictions. By way of example, the EEOC explains that this means that an employer is required to treat a pregnant employee who has a 20-pound lifting restriction the same as someone who, because of a disabling back impairment, has a 20-pound lifting restriction.
  • The Guidance makes it clear that an employer cannot force an employee to take leave because she is pregnant, as long as she is able to perform her job.
  • The Guidance calls for employers with health insurance plans to include coverage for contraceptives on the same basis as prescription medications that prevent medical conditions other than pregnancy.
  • Although leave related to pregnancy, childbirth, or related medical conditions can be limited to women affected by those conditions, the Guidance calls for mothers and fathers to have equal parental leaves for bonding. Specifically, the EEOC contends that if an employer provides six months of paid leave for new mothers to bond with and care for their new baby (e.g., after providing any required medical leave for the mother), it would be unlawful for employees not to provide six months of similar paid leave to new fathers.
While instructive, this Guidance has already drawn heavy criticism from EEOC Commissioner Lipnic, as well as employers. Besides pushing the boundaries of employers’ obligations to pregnant employees, portions of the EEOC’s guidance may become moot in the near future. For instance, the EEOC’s position with respect to contraception will likely be questioned in light of the Supreme Court’s recent decision in Burwell v. Hobby Lobby Stores, Inc., et al., —S.Ct.—, 2014 WL 2921709, where the Supreme Court held that certain employers cannot be lawfully compelled to provide all forms of contraception.

In addition, one of the most controversial issues addressed in the Guidance is currently pending before the U.S. Supreme Court. See Young v. United Parcel Services, Inc., 707 F.3d 437 (4th Cir. 2013), cert. granted, 86 USLW 362 (U.S. July 1, 2014) (No. 12-1226). In Young, the Supreme Court is being asked to decide whether pregnant employees are entitled to receive a reasonable accommodation in the form of a light duty assignment even if the employer’s policy limits light duty to employees injured on the job or to employees with disabilities under the ADA. If the Supreme Court’s decision ultimately contradicts the EEOC’s Guidance, the EEOC’s guidance will become moot with respect to this issue. In the meantime, however, employers are left with the open question of whether the Supreme Court will agree or disagree with the EEOC’s interpretation of the PDA.

In light of the foregoing, it is advisable for employers to address any issues involving their pregnant employees carefully and to reexamine their own internal employment policies and practices before becoming the target of an EEOC investigation or enforcement action. In particular, employers should: (1) ensure that their hiring, promotion, and other employment decisions do not discriminate against pregnant employees; (2) review any reasonable accommodation or light duty policies to determine whether they apply to pregnant employees – regardless of whether the pregnant employee is disabled for purposes of the ADA; (3) review any parental leave policies to determine whether they apply equivalent leave to male and female employees; (4) review whether their health insurance plans apply the same terms and conditions for pregnancy-related costs (including contraception) as for medical costs unrelated to pregnancy; and (5) consider training supervisors and managers about their obligations under the PDA and ADA.

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The EEOC’s Enforcement Guidance is available for review by clicking here. Please contact any Clark Baird Smith LLP attorney if you have questions regarding the EEOC’s new Enforcement Guidance and how it impacts your employment practices and policies.

[1] Illinois employers should also be aware that HB 0008 recently passed both houses and amends the Illinois Human Rights Act to specify that public and private sector employers must provide reasonable accommodations for pregnant employees, unless the accommodation would create an undue hardship. HB 0008 extends protections to “pregnancy, childbirth, and conditions related to pregnancy and childbirth.” HB 0008 is currently awaiting the Governor’s signature.

[2] As a reminder, Illinois public employers are prohibited by the Illinois Human Rights Act from refusing to provide pregnant police officers and firefighters with a temporary transfer under certain circumstances. Specifically, the Illinois Human Rights Act prohibits a public employer from refusing “to temporarily transfer a pregnant female peace officer or pregnant female fire fighter to a less strenuous or hazardous position for the duration of her pregnancy if she so requests, with the advice of her physician, where that transfer can be reasonably accommodated.” 775 ILCS 5/2-102.

The CBS LLP Legal Advisory is prepared for general information purposes only. The summaries of recent court opinions and other legal developments are not necessarily inclusive of all the recent legal authority of which you should be aware when making your legal decisions. Thus, while every effort has been made to ensure accuracy, you should not act on the information contained herein without seeking more specific legal advice on the application and interpretation of these developments to any particular situation.
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