Earlier this month, the Equal Employment Opportunity Commission (“EEOC”) published Enforcement Guidance on Pregnancy Discrimination and Related Issues (“Guidance”). The Guidance focused on the Pregnancy Discrimination Act of 1978 (“PDA”), which “make[s] clear that discrimination based on pregnancy, childbirth, or related medical conditions is a form of sex discrimination prohibited by Title VII.” The new Guidance is controversial because it dramatically expands the rights of employees under the PDA and may be negated by the Supreme Court next term. In fact, 2 of the 5 EEOC commissioners issued public statements expressing their dissent from the new Guidance.
While the new Guidance does not have the force of formal regulations, employers should be aware that the EEOC will be actively prosecuting cases in accordance with the new Guidance. For Minnesota employers, the new Guidance comes on the heels of the Women’s Economic Security Act, which requires employers to provide pregnant employees with certain accommodations even in the absence of a doctor’s note.
“Fundamental Requirements” of the PDA
The Guidance begins with what the EEOC considers to be the two “fundamental requirements” of the PDA: (1) an employer may not discriminate against an employee on the basis of “pregnancy, childbirth, or related medical conditions” and (2) women affected by those conditions must be “treated the same as other persons not so affected but similar in their ability or inability to work.” These tenets are the basis for the EEOC’s guidance.
Expansive PDA Coverage
The first question addressed by the EEOC Guidance is what constitutes “pregnancy, childbirth, and related medical conditions” under the PDA. Throughout the years, various lawsuits have raised questions of whether discrimination on the basis of contraceptive coverage, infertility, and lactation fall within the purview of the PDA.
The Guidance takes the position that Title VII, as amended by the PDA, prohibits discrimination based on current pregnancy, past pregnancy, potential or intended pregnancy, and medical conditions related to pregnancy. While an employer is not liable for pregnancy discrimination if the woman’s condition was neither revealed nor obvious, it is liable for adverse decisions based on stereotypes or assumptions about a pregnant woman’s capacity to work, as well as for decisions motivated by a past pregnancy. According to the Guidance, even before a pregnancy occurs, employers cannot discriminate on the basis of potential pregnancy or reproductive risk. The Guidance also makes clear that employers cannot discriminate on the basis of a woman’s intentions to become pregnant.
The Guidance also weighs in on prescription contraceptives. Specifically, because prescription contraceptives are available only for women, the Guidance states that an employer’s explicit refusal to offer insurance coverage for them constitutes unlawful sex discrimination. In addition, although the PDA expressly states that employers do not have to provide insurance coverage for abortion, the Guidance states that “Title VII protects women from being fired for having an abortion or contemplating having an abortion.” The Guidance also states that “it would be unlawful for a manager to pressure an employee to have an abortion, or not to have an abortion, in order to retain her job, get better assignments, or stay on a path for advancement.”
“Equal Treatment” Prohibits “Discriminatory” Light Duty Jobs
The second key issue addressed by the Guidance relates to an employer’s failure to accommodate pregnancy-related incapacity despite accommodating similar incapacity for at least some other workers. For example, an employer may have several light duty positions that it offers to employees who are injured on the job, but not to any other employees. While some courts have considered such a policy violative of the PDA’s command to treat pregnant employees “the same . . . as other persons not so affected,” other courts have found such policies to be lawful.
For example, in Young v. United Parcel Service, Inc., 707 F.3d 437 (4th Cir. 2013), UPS had a policy limiting light duty to: (a) employees injured on the job, (b) employees who have disabilities within the meaning of the ADA, and (c) employees who have lost their certification to drive commercial motor vehicles. UPS denied a light duty position to a pregnant employee who had a lifting restriction during her pregnancy. The court noted that the policy was “pregnancy blind” and refused to transform “an antidiscrimination statute into a requirement to provide accommodation to pregnant employees, perhaps even at the expense of other, nonpregnant employees.” Earlier this month, the Supreme Court agreed to review the case.
While the Supreme Court will ultimately determine whether a “pregnancy blind” policy is lawful under the PDA, the EEOC Guidance takes the position that Young should be overturned:
The Commission rejects the position that the PDA does not require an employer to provide light duty for a pregnant worker if the employer has a policy or practice limiting light duty to workers injured on the job and/or to employees with disabilities under the ADA. . . . This analysis is flawed because it rejects the PDA’s clear admonition that pregnant workers must be treated the same as non-pregnant workers similar in their ability or inability to work.
Instead, the EEOC Guidance concludes:
An employer may not refuse to treat a pregnant worker the same as other employees who are similar in their ability or inability to work by relying on a policy that makes distinctions based on the source of an employee’s limitations (e.g., a policy of providing light duty only to workers injured on the job).
The EEOC does make clear that the employer can require the employee to follow the same set of procedures as well as evaluate the pregnant employee’s request for a reasonable accommodation in the same manner that it evaluates other potential accommodations:
[A] pregnant worker who needs changes in her duties or schedule would be responsible for conveying the request to her supervisor and for providing reasonable documentation of her limitations if this is what the employer requires of employees who seek workplace changes for reasons other than pregnancy. Similarly, if a pregnant worker requests a change that the employer is providing as a reasonable accommodation to a co-worker with a disability, the employer may evaluate the pregnant employee’s request in light of whether the change would constitute an “undue hardship,” since this would amount to treating the pregnant employee the same as an employee with a disability whose accommodation request would also be subject to the defense of undue hardship.
In summary, under the new EEOC Guidance, an employer that offers such light duty accommodations is required to provide a pregnant employee with a similar light duty accommodation, despite the fact that the employee’s inabilities are related solely to her pregnancy and have no relation to the workplace and may not even qualify as a medical disability. In fact, the EEOC specifically states that light-duty programs that are restricted to workers injured on the job violate the PDA.
Bottom Line
The take-away for employers is two-fold. First, employers should consider carefully all actions that may be taken, or not taken, if an employee situation involves pregnancy. Second, employers that have a light duty program that is limited to employees who have work-related injuries may want to re-consider this policy – at least until the Supreme Court issues its decision in Young.