EEOC Issues First New Guidance on Pregnancy in 30 Years

September 4, 2014Articles New Jersey Law Journal

"Reprinted with permission from the September 4 issue of the New Jersey Law Journal. (c) 2014 ALM Media Properties, LLC. Further duplication without permission is prohibited. All rights reserved."

The Equal Employment Opportunity Commission (EEOC), which has made discrimination against pregnant workers a focal point of its enforcement priorities over the past few years, ratcheted up its pressure on employers by publishing a new "Enforcement Guidance on Pregnancy Discrimination and Related Issues" this summer.

The Enforcement Guidance ("the Guidance") reiterates basic principles that women cannot be discriminated against because they are pregnant, were recently pregnant or intend to become pregnant, or based on unfounded stereotypes that they may not be physically capable of working while pregnant or that the fetus may be harmed. The bulk of the Guidance is not controversial and tracks current case law.

The Guidance also addresses more recent issues such as breast feeding and lactation discrimination and is at odds with some recent decisions holding that lactation was not a pregnancy-related condition.

Although the Guidance addresses these and other issues mainly in the context of the Pregnancy Discrimination Act (PDA), the Guidance also weaves in the Americans with Disabilities Act (ADA) as another source of claims. The Guidance notes that most pregnancy discrimination claims remain claims that women were discharged on account of their pregnancy.

The Guidance provides numerous scenarios of what the EEOC deems to be discriminatory, which may be helpful to employers in recognizing risks. Several of these scenarios address discharge while an employee is on pregnancy or parental leave, or concern an employer's uniform application of its medical leave policy. The Guidance notes that an employer would not violate the PDA where it treats pregnant employees the same as other employees who exhaust an employer's given medical leave. Still, employers should be careful before terminating a pregnant employee who exhausts medical leave.

The Guidance also addresses an employer's obligation to provide medical leave under the Family and Medical Leave Act (FMLA) and the ADA. Employers are reminded that while a "normal" pregnancy does not constitute a disability, a normal pregnancy is a serious health condition under the FMLA, entitling an eligible employee to leave. In addition, the Guidance reiterates established case law that a pregnancy-related impairment may be a disability under the ADA that requires an employer to grant a reasonable accommodation, including leave.

The Guidance does signal a departure from current case law in certain aspects. The most notable is the portion that articulates the EEOC's view that employers must reasonably accommodate a pregnant employee with leave or light duty even where the employee does not have a pregnancy-related medical condition that would count as a disability.

The extent to which an employer must accommodate a pregnant, nondisabled employee is being argued before the United States Supreme Court next year, with a decision expected by June 2015. Obviously, the Supreme Court trumps the EEOC, and this portion of the Guidance could well be moot if the Supreme Court views the law differently from the EEOC in Young v. United Parcel Service.

In Young, an employee sued United Parcel Service (UPS) for discrimination under the PDA and the ADA. Young had been placed on leave when she was pregnant after her doctor noted that she required light duty. Young specifically complained that UPS had a light-duty policy wherein it provided light-duty assignments for individuals injured on the job, those who were disabled under the ADA or those who had lost their DOT certification due to a medical condition, but it did not provide those opportunities for pregnant workers.

The Fourth Circuit, in dismissing Young's claims, first noted that a normal pregnancy is not a disability, even where a lifting restriction is imposed by the employee's treating physician. The Fourth Circuit then turned to the PDA claims and rejected the claim that the PDA required employers to provide maternity leave. Indeed, the majority of circuits have similarly held that the PDA only requires employers to treat pregnant workers the same as other similarly situated employees; it does not require preferential treatment for pregnant workers. The Fourth Circuit instead held with the majority view that where a policy treats pregnant and nonpregnant workers the same way, it does not violate the PDA.

So, for now, UPS has won and its last hurdle is to win before the Supreme Court. The EEOC, on the other hand, seeks to overturn the Fourth Circuit decision and the majority of the circuits that disagree with the EEOC's interpretation. The Enforcement Guidance dedicates a significant amount of discussion to a pregnant employee's access to light duty and takes an expansive view of the PDA with regard to employee access to light duty and an employer's duty to accommodate a pregnant employee.

While the PDA requires an employer to offer benefits to pregnant workers on the same terms that it offers benefits to other workers "similar in their ability or inability to work," the EEOC notes that an employer cannot deny a nondisabled pregnant worker light duty where it provides light duty to employees injured at work or who are disabled under the ADA. This part of the Guidance is probably the most controversial and may conflict with the future Supreme Court ruling in Young.

The EEOC's Guidance hinges on its interpretation of "similar in their ability or inability to work." The EEOC interprets "similar in their ability or inability to work" as simply meaning that a pregnant worker is unable to work. Other courts, including the Fourth, Fifth, Seventh and Eleventh Circuits, have more closely looked at "similar" in interpreting the PDA. Those courts have noted that an employee who is disabled or injured at work is not "similar" in his ability or inability to work as a pregnant, nondisabled employee.

In the meantime, employers with light-duty policies that only apply to persons injured at work should be aware that the Guidance is directly at odds with the law in most jurisdictions. This position is also at odds with the EEOC's own guidance issued in 2000 on workers' compensation and the ADA, which is under review by the EEOC. That guidance notes that there is no violation of the ADA where light duty is only applicable to those injured on the job, as both disabled and nondisabled employees are not getting light duty if they are not injured at work.

The EEOC has taken another controversial position in the Guidance, which is its pronouncement that an employer who refuses to provide contraception coverage could still be discriminating against women where it provides coverage for other preventative care that is provided to men, such as vaccines, blood pressure medication, etc.

When making this pronouncement, the EEOC acknowledged the recent Supreme Court decision in Burwell v. Hobby Lobby Stores, which held that private, closely held corporations could refuse to provide contraception coverage if it violated their religious beliefs. The EEOC, however, reiterated its position that all other employers may be liable for violating Title VII if they deny contraceptive coverage.

The Guidance also tackles issues of parental leave for male employees. Parental leave policies that treat women and men differently can create problems for employers. For example, the EEOC cautions that employers who provide eight weeks of bonding leave for female employees, but only two weeks of bonding leave for fathers, could violate Title VII.

Employers need to be careful how they define maternity and paternity leave policies. According to the Guidance, an employer can provide more pregnancy leave for a female employee where a portion of the leave is for pregnancy-related medical conditions and a portion is for bonding, provided that the leave amount for bonding is the same as is provided to male employees. To date, there have been limited cases brought by fathers in these circumstances, but the fact that the Guidance includes commentary on these types of claims may signal an increase in the enforcement of these claims.

The EEOC's position on the above issues signals, more than the Guidance itself, that not only are pregnancy claims a priority for the EEOC, but also that the EEOC is willing to push the boundaries of this type of discrimination claim. Even though the Guidance is not legally binding, employers should take care to review leave and light-duty policies to try to evaluate and minimize legal risks.

"Reprinted with permission from the September 4 issue of the New Jersey Law Journal. (c) 2014 ALM Media Properties, LLC. Further duplication without permission is prohibited. All rights reserved."