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Are You Following the New Guidance on Accommodating Pregnant Employees?

When employers hear the news that their employee is pregnant, many do not know what to do.  Fortunately, the Equal Employment Opportunity Commission’s (“EEOC”) just-released guidance explains exactly what employers should do.  It details how the EEOC will be enforcing the law with regard to the sixdifferent federal statutes controlling this issue: Title VII of the Civil Rights Act of 1964 (“Title VII”), the Americans with Disabilities Act (“ADA”), the Pregnancy Discrimination Act (“PDA”), the Family and Medical Leave Act (“FMLA”), the Affordable Care Act (“ACA”), and the Genetic Information Nondiscrimination Act.  The major headline-grabbing part of the guidance is that the EEOC suggests that although healthy employees with a normal pregnancy are not “disabled” under the ADA, they must be accommodated as if they were.  Although many state and local laws now require this, including New York City and New Jersey, federal law has not, up until now.  Keep in mind, the guidance is not binding but is persuasive authority for Courts and shows what the EEOC intends to enforce.  It also shows the best practices the EEOC believes employers should undertake to avoid liability.  Maybe the most curious part of this whole guideline is why it was published now, when the issue highlighted above is pending before the United States Supreme court.  The details of this issue are explained below.

It all began in 1978, when Congress passed the PDA which amended Title VII to make clear, despite case law at the time, that sex-related discrimination under Title VII includes sex discrimination based on pregnancy, childbirth, and related medical conditions.  The general concept is pregnant employees must be treated like everyone else.  What this means is pregnant women who are working must be treated like other employees and pregnant women who are not able to work or need an accommodation must be treated like other employees who are similar in their inability to work.  The law has been unclear for many years on exactly what accommodation is needed for pregnant women.  Below are some of the controversial issues included in the EEOC’s guidance:

1.            Potential, Intended or Past Pregnancy: Although most discrimination is based on current pregnancy, employers are also prohibited from discrimination based on an employee’s potential to get pregnant (e.g., discrimination because employee is of child-bearing age), intent to get pregnant, engagement in infertility treatments, use of contraceptives, past pregnancy, etc.

2.           Related Medical Conditions: Pregnant employees with medical conditions related to pregnancy or childbirth must also be treated the same as other employees in their ability or inability to work, including lactation/breastfeeding and abortion.

3.           Harassment: Pregnancy-related harassment is unlawful and will be evaluated based on the following factors: frequency of the discriminatory conduct, severity of the conduct, whether the conduct was physically threatening or humiliating, whether the conduct unreasonably interfered with the employee’s work performance, context in which the conduct occurred, as well as any other relevant factor.

4.           Caregiving Responsibilities: Although the law does not protect employees who must take care of young children, it explicitly reminds employers that if they discriminate based on sex, such as not hiring women with small children, this violates Title VII.

5.           Light Duty: Employers must give the same light duty accommodations to pregnant employees as they do to other employees who are similar in their ability or inability to work.  In the case currently before the U.S. Supreme Court, Young V. United Parcel Service, Inc. et al., 707 F.3d 437 (4th Cir. 2013), a pregnant UPS driver requested light duty since she could not lift the required 70 pounds but only 20 pounds.  UPS had a policy of allowing light duty in only three circumstances: where employees had been injured on the job, where employee had lost their Department of Transportation certification, and where an employee was disabled under the ADA.  Since the plaintiff did not fit any of these three categories, she was not granted light duty but instead put on leave.  The plaintiff sued UPS in part based on pregnancy discrimination.  The District Court granted summary judgment for UPS and the Fourth Circuit affirmed.

Interestingly, the guidance explicitly makes clear that if UPS’s policy stopped after the first part, meaning it allowed only employees injured on the job to have light duty, it would likely have a disparate impact on pregnant employees and would be discriminatory.  Because the policy has two other allowable circumstances for light duty, it is unclear whether it would be discriminatory under the guidance.  Once the Court decides this case, it will be clear what is expected of employers in the way of offering light duty to pregnant employees.  It will be interesting to see how the Court’s opinion reacts to the recent guidance.

6.           Leave: Employers cannot force pregnant employees to take leave because they are pregnant (which essentially occurred in the Young case), cannot restrict leave that disproportionately impacts pregnant women (such as a policy denying sick leave during the first year of employment), and cannot discriminate against men if it relates to leave policies after child birth like bonding or parental leave.

7.            Health Insurance: If employers offer health insurance, it must cover pregnancy, childbirth, and related medical conditions.  However, the guidance was not updated to reflect the recent Hobby Lobby decision or the general rules of the ACA.

8.           ADA: The guidance includes various suggestions for reasonable accommodations under the ADA including redistributing marginal (non-essential) functions of the job, altering how these functions are performed, modifying workplace policies, modifying work schedules, granting leave, and temporarily assigning employees to light duty positions.

9.           FMLA and Breaks for Nursing Mothers: Employers should keep in mind that they have obligations toward pregnant employees under the FMLA and ACA, and may have additional obligations under state and local law.

10.         Best Practices: The guidance sets forth many best practices including:

a.            Creating policies based on the PDA and ADA including developing a complaint procedure for covered employees.

b.           Training managers and employees about rights and responsibilities under these laws.

c.            Focusing on job qualifications rather than personal issues like the applicants’ family.

d.           Developing specific, job-related qualifications standards for each position that reflects the job duties.

e.            Ensuring the leave policy is not restrictive in a way that disproportionately impacts women.

f.            Monitoring compensation practices and performance appraisal systems.

g.            Reviewing light duty policies.

h.           Having a process for considering reasonable accommodations.

Interestingly, EEOC Commissioner Barker recently noted at a conference in New York City, where Brody and Associates also spoke, that the PDA and guidance do not include an “undue hardship” exemption.  Therefore, an employer who was asked by a healthy employee with a normal pregnancy for an accommodation may not have any defense if the accommodation would cause undue hardship.

We will keep you updated on the courts’ reactions to the new guidance and on any developments in the Young case.

Brody and Associates regularly provides counsel on civil rights issues and employment laws in general.  If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.965.0560.