EEOC Pushes The Boundaries Of Employer Obligations To Pregnant Employees
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EEOC Pushes The Boundaries Of Employer Obligations To Pregnant Employees
September 2014
Several state and federal laws provide significant protection to pregnant women in the workplace. In 1978, Congress passed the Pregnancy Discrimination Act (“PDA”), which amended the definition of discrimination on the basis of sex in Title VII of the Civil Rights Act of 1964. For the first time in over thirty years, the U.S. Equal Employment Opportunity Commission (“EEOC”) has made an effort to shed light on what constitutes unlawful discrimination under the PDA. On July 14, 2014, the EEOC voted (3-2) to approve new Enforcement Guidance on Pregnancy Discrimination (“Guidance”).That same day, EEOC Commissioner Victoria A. Lipnic publicly expressed her disappointment that the EEOC failed to make a final draft of the Guidance available for public review and comment prior to its vote. According to Lipnic, this effort directly disregarded the opinion of the commissioners, a majority of whom believed that the Guidance should be open to public comment, considering that it expressed major changes to the law. Among the novel changes is the opinion that under the PDA, a pregnant worker is entitled to “reasonable accommodation” as that term is defined by the Americans with Disabilities Act (“ADA”).
The EEOC’s Guidance stretches the bounds of the PDA and ADA. The Guidance clearly provides that the PDA prohibits discrimination against employees and applicants based on past and current pregnancy, childbirth, and related medical conditions. It also prohibits discrimination based on an employee’s potential to or intent to become pregnant. The Guidance stresses that those employees experiencing pregnancy-related conditions – even those experiencing routine pregnancies – may be considered disabled under the ADA. Employers are prohibited from forcing a pregnant employee to take leave simply because she is pregnant, as long as she is able to perform her job. Health insurance plans must include coverage for contraceptives on the same basis as prescription medications that prevent other types of medical conditions.[1] The Guidance also provides that mothers and fathers should receive equal parental leave for bonding. This means that if an employer provides a woman six months of paid maternity leave, it must provide similar leave to new fathers.
Perhaps one of the most controversial aspects of the Guidance relates to the professed requirement that employers must reasonably accommodate a pregnant employee even if the employee is not disabled. The Guidance explains that pregnant employees are entitled to reasonable accommodations in the work place even if the employer’s policy explicitly limits light duty to on-the-job injuries, or to employees with disabilities recognized under the ADA. In a nutshell, the Guidance requires employers to treat pregnant employees the same as non-pregnant employees “similar in their ability or inability to work.” For instance, a woman with a 20 pound lifting restriction due to pregnancy must be compared to those who have similar lifting restrictions due to some job related or ADA disability. This position erroneously assumes that all non-pregnant workers are homogenous.
The EEOC’s Guidance comes on the heels of the U.S. Supreme Court’s decision to hear a case in which many central and significant questions addressed by the Guidance will be before the High Court. See Young v. United Parcel Services, Inc., 707 F.3d 437 (4th Cir. 2013), cert. granted 134 S. Ct. 2898 (July 1, 2014). In Young, the Court will consider whether an employer’s light duty policy extending only to employees with occupational injuries must also be extended to pregnant employees who are similarly restricted and who request such an accommodation. In this case, a doctor restricted a pregnant UPS worker from lifting more than 20 pounds. UPS refused to accommodate that restriction, even though the company accommodated non-pregnant employees with similar restrictions caused by work-related injuries. Depending on the Supreme Court’s decision in Young next term, the EEOC’s Guidance may become moot with respect to certain issues.
While the federal government has not done much, until now, to clarify the breadth of the PDA’s reach, employers across the country have already been subject to strict prohibitions on pregnancy discrimination and certain legal obligations to provide reasonable accommodations. Indeed, a majority of the states have enacted laws making it a violation for an employer to discriminate against an employee on the basis of pregnancy. For instance, Oregon law makes it unlawful for an employer to discriminate on the basis of, among other things, sex. “Sex” is defined to include “pregnancy, childbirth and related medical conditions or occurrences.” Or. Rev. Stat. Ann. § 659A.029.
State law makers have recently introduced a slew of pregnancy related bills. In September 2013, the Florida legislature introduced SB 220 and HB 105, which sought to add the term “pregnancy” to the Florida Civil Rights Act to prohibit employment discrimination based on pregnancy, childbirth, or related medical conditions. These bills died in the House after the Florida Supreme Court ruled that the state law barring discrimination based on gender applies to pregnant women. The court declared that “the capacity to become pregnant is one of the most significant and obvious distinctions between the female and male sexes. For this reason, discrimination based on pregnancy is in fact discrimination based on sex because it is discrimination as to a natural condition unique to only one sex and that arises ‘because of [an] individual’s … sex.’” Delva v. Cont’l Grp., Inc., 137 So. 3d 371, 375 (Fla. 2014). The Massachusetts Supreme Court, albeit it 36 years earlier, espoused very similar reasoning. Mass. Elec. Co. v. Mass. Comm’n Against Discrimination, 375 N.E.2d 1192, 1198 (1978).
Much of the state-level legislation introduced and passed into law specifically requires certain employers to provide reasonable accommodations to a pregnant employee. For example, in response to concerns that pregnant firefighters should be placed on light duty, the Iowa legislature introduced Senate File 308 in March 2013. The bill requires employers to provide reasonable accommodations, including an accessible work site, modified equipment and/or work schedule, and job restructuring to pregnant employees
At least twelve states, including Maryland, Illinois, California, Alaska, Hawaii, New Mexico, Texas, Louisiana, West Virginia, Delaware, New Jersey, and Connecticut have enacted laws that explicitly create an affirmative duty to provide a pregnant employee reasonable accommodations in the workplace. Maryland passed a law in 2013 declaring that an employer must provide reasonable accommodations to an employee due to pregnancy related disabilities. So long as there is no undue hardship, the employer must explore all possible means of providing those experiencing pregnancy related disabilities with such accommodations as light duty, change in work hours, or transfer to a less strenuous or hazardous position. Md. Code Ann. State Gov’t §20-609.
The Maryland law seems to be modeled, at least in part, after an Illinois law wherein a public employer must grant a pregnant public safety employee a temporary transfer under certain circumstances to a less strenuous or hazardous position during pregnancy upon the advice of a physician. 775 ILCS 5/2-102. In July 2014, the Illinois legislature passed HB 0008, which amends the Illinois Human Rights Act to specify that an employer must provide reasonable accommodations to pregnant employees, unless the accommodation creates an undue hardship. It also requires employers to post notices and to include notices about an employee’s pregnancy accommodation rights in their handbooks and further prohibits retaliations against employees who request such accommodations. The law currently awaits the Governor’s signature.
In Alaska, pregnancy accommodation law only applies to public sector employers. Public employers in Alaska are required to, upon request, transfer a pregnant employee to a less strenuous or hazardous position for which she is qualified, provided that the transfer is recommended by a licensed physician. Alaska Stat. § 39.20.520 (2013). Similarly, county and municipal employers in Texas must make reasonable effort to accommodate an employee that has been deemed by a physician to be partially physically restricted by her pregnancy. Tex. Loc. Gov’t Code §180.004 (2001).
California, New Jersey, and West Virginia also require employers to grant an employee’s request for reasonable accommodations upon the advice of a physician. In California, the accommodation may include transferring the employee to a less strenuous or hazardous position if the transfer can be reasonably accommodated. Cal. Gov’t Code § 12945 (2012). Unless the employer can demonstrate undue hardship, employers in New Jersey are required to provide reasonable accommodations including: bathroom breaks, periodic rest, breaks for increased water intake, modified work schedules, temporary assistance with manual labor, and temporary transfers to a less strenuous or hazardous position. N.J. Stat. Ann. §10:5-12(s) (2013). The West Virginia legislature passed a law that will soon go into effect that creates similar reasonable accommodation obligation for employers. 16 H.B. 4284, 81st Leg., 1st Sess. (W.Va. 2014). In Connecticut, the only reasonable accommodation enumerated in the statute is the temporary transfer of an employee if the current position may cause injury to the pregnant woman or to her fetus. Conn. Gen. Stat. § 46a-60(a)(7) (2011). Interestingly, there is no statutory indication that an employee must provide a doctor’s note when seeking a reasonable accommodation.
Several cities, including New York City, NY (2013), Philadelphia, PA (2014), Central Falls, RI (2014), and Providence, RI (2014) have all passed ordinances providing for reasonable accommodations of pregnant employees.
In light of the foregoing, public employers should address any issues involving their pregnant employees carefully. It is important to be vigilant of the EEOC’s Guidance despite the fact that some issues may become moot after the Supreme Court’s decision in Young next term. Employers should examine internal employment policies and practices to determine potential liability under the PDA and/or state law. In states that already require employers to provide reasonable accommodations to employees, those reasonable accommodations may include an entitlement to light duty if light duty is provided to non-pregnant employees. The key to reduce employer liability is through preventative action. Consider training supervisors and managers about their obligations under pregnancy related law, including state law, the PDA, and the ADA.
*As published in NPELRA Connections Newsletter.
[1] This position on health insurance is certainly questionable in light of the Supreme Court’s decision in Burwell v. Hobby Lobby Stores, Inc., 134 S.Ct. 2751 (2014), which was issued two weeks prior to the EEOC’s Guidance. In Hobby Lobby, the Supreme Court held that certain employers cannot lawfully be compelled to provide all forms of contraception.
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