By Laurie E. Meyer
On July 14, 2014, the U.S. Equal Employment Opportunity Commission (“EEOC”) issued “Enforcement Guidance on Pregnancy Discrimination and Related Issues,” along with a Question and Answer document about the guidance and a Fact Sheet for small businesses. All are available on the EEOC’s website, www.eeoc.gov. This guidance supersedes the agency’s previous guidance, written more than 30 years ago, and provides an expanded interpretation of what constitutes pregnancy discrimination and when an employer is obligated to accommodate pregnancy-related work restrictions.
According to the EEOC’s press release, the guidance addresses many topics, including:
- The fact that the Pregnancy Discrimination Act (“PDA”), which is part of Title VII, covers not only current pregnancy, but discrimination based on past pregnancy and a woman’s potential to become pregnant (i.e., fertility);
- 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 if parental leave (which is distinct from medical leave associated with childbearing or recovering from childbirth) is provided, it should 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; and
- Best practices for employers to avoid unlawful discrimination against pregnant workers.
First, a word on what the EEOC-published guidance is and what it is not: The guidance does explain the EEOC’s understanding of the PDA and how the EEOC will seek to enforce the law. Given the sweeping and expansive nature of this guidance, it signals that the EEOC will more aggressively enforce the PDA than it has in the past, and—as will be discussed in more detail below—it will attempt to impose standards on employers not previously recognized. Compliance with the guidance may serve as something of a safe harbor for employers. However, the EEOC’s guidance does not carry the force or authority of the law itself, formally promulgated regulations or interpretive court precedent. Courts are therefore free to decline to follow what the EEOC has stated on these issues in the guidance, and have done so in the past on other issues.
That being said, some of the information contained in the guidance is not new: For instance, the guidance advises employers that they should not ask questions about an applicant’s or employee’s pregnancy status, children, plans to start a family or other related issues during interviews or performance reviews. However, there is a great deal in the guidance that reflects a departure from the plain text of the law and the interpretive case law that has followed over the years.
Pregnancy-Related Conditions to be “Reasonably Accommodated”
The guidance addresses the application of the Americans with Disabilities Act (“ADA”), as amended in 2008, to individuals who have pregnancy-related disabilities, and emphasizes that employers may violate the PDA by not affording reasonable accommodations to pregnant employees.
The guidance explains that the 2008 amendments to the ADA expanded the definition of “disability” to include employees with conditions requiring work-related restrictions similar to those needed by pregnant women. For this reason, the EEOC cautions against treating pregnant employees differently than other disabled employees: “For example, someone who, because of a back impairment, has a 20-pound lifting restriction that lasts for several months would be an individual with a disability under the ADA entitled to reasonable accommodation, absent undue hardship. The same individual would be an appropriate comparator for PDA purposes to a woman who has a similar restriction due to pregnancy.”
The guidance identifies several potential reasonable accommodations for pregnant workers, such as:
- Redistributing marginal functions that the employee is unable to perform (e.g., occasional lifting), or altering how an essential or marginal function is performed. Marginal functions are the non-fundamental (or non-essential) job duties.
- Modifying workplace policies by allowing a pregnant worker more frequent breaks or allowing her to keep a water bottle at a workstation even though the employer generally prohibits employees from keeping drinks at their workstations.
- Modifying a work schedule so that someone who experiences severe morning sickness can arrive later than her usual start time and leave later to make up the time.
Importantly, the guidance also recommends that employers explicitly state in any written reasonable accommodation policy that such accommodations may be available to individuals with temporary impairments, including impairments related to pregnancy—despite the fact that temporary impairments such as pregnancy have generally never been covered by the ADA.
Leave and Light Duty Policies
The guidance also provides a list of employer best practices. That list includes recommendations that employers review and potentially reevaluate any restrictive leave policies and light duty policies to ensure that they do not have a disparate impact on pregnant employees and that they are applied in a non-discriminatory manner. According to the EEOC, a pregnant employee can establish a violation of the PDA by showing that she was denied light duty or other accommodations that were granted to other employees who are similar in their ability or inability to work. An employer may not deny light duty to pregnant employees on the ground that pregnancy is not a disability under the ADA or because the employer reserves light-duty assignments to those with work-related injuries. The only relevant question to the EEOC in this context is whether the pregnancy impairments are similar to the impairments of non-pregnant employees who have been accommodated with light-duty assignments or other work modifications.
Additionally, the guidance recommends that “when reviewing and comparing applicants’ or employees’ work histories for hiring or promotion, [employers should] focus on work experience and accomplishments and give the same weight to cumulative relevant experience that would be given to workers with uninterrupted service.”
Need for Equal “Paternal” Leave for Bonding Time
Many employers, even those not covered by state or federal Family and Medical Leave laws, provide medical leave to mothers who give birth so that these employees can medically recover from childbirth. According to the guidance, it is still permissible to treat fathers and mothers differently in this regard. However, many times the leave granted to mothers extends beyond what is medically necessary to include bonding time with the newborn and/or additional time to care for the newborn. The guidance states that this kind of parental leave (which is distinct from medical leave) should be provided to similarly situated men and women on the same terms. Employers should make certain that their policies treat male and female employees the same in this regard, or, alternatively, that their policies draw distinctions between medical and parental leave following childbirth.
The guidance further clarifies that the PDA covers lactation-based discrimination because lactation is a “medical condition,” and states that an employee must have the same freedom to address lactation-related needs that others have to address similarly limiting medical conditions. This includes allowing lactating employees to change their schedules or use sick leave for lactation-related needs if employees are given these allowances for other non-incapacitating medical conditions.
Failure to Include Contraception in Health Plans
The guidance explicitly states that a “health insurance plan facially discriminates against women on the basis of gender if it excludes prescription contraception but otherwise provides comprehensive coverage.” The guidance makes this proclamation without any reference to the recent Supreme Court decision in Burwell v. Hobby Lobby Stores, Inc., wherein the Court ruled that the Affordable Care Act’s contraceptive mandate violated the Religious Freedom Restoration Act (“RFRA”), at least as applied to closely-held, for-profit corporations whose owners have legitimate religious objections to providing certain types of contraceptives. The EEOC merely states in the accompanying “Question and Answer” document that the 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 RFRA or under the Constitution’s First Amendment.”
The updated guidance issued by the EEOC this week is sweeping and all of the information contained in it cannot be covered here. Employers should also be cognizant of the fact that standards adopted by federal agencies, such as the EEOC, may be different than those adopted by state agencies under state laws, such as the Wisconsin Fair Employment Act.
Employers with questions about how their employment policies, such as accommodation, lactation and light-duty policies, may be impacted by this guidance or how they should treat individual pregnant workers should consult experienced legal counsel.
If you have any questions regarding this article, please contact your Davis & Kuelthau attorney or the author, Laurie E. Meyer at 414.225.1419 / firstname.lastname@example.org.