EEOC Issues Enforcement Guidance on Pregnancy Discrimination Act and Its Application to the ADA

On July 14, 2014, the U.S. Equal Employment Opportunity Commission (“EEOC”) issued new guidance on the Pregnancy Discrimination Act (“PDA”). The “Enforcement Guidance on Pregnancy Discrimination and Related Issues” (the “Guidance”) supersedes the agency’s prior guidance, which was last updated in 1983. The Guidance provides information concerning the rights and obligations of employees and employers under the PDA based on the EEOC’s interpretation of the PDA. It also discusses the application of the Americans with Disabilities Act (ADA) to pregnancy-related disabilities. The EEOC released two additional documents on its website to supplement the Guidance: a Fact Sheet and Questions and Answers.

The Guidance has prompted controversy within the EEOC. Two of the EEOC’s five members, Constance S. Barker and Victoria A. Lipnic, voted against issuing the Guidance. In separate opposition statements, Commissioners Barker and Lipnic each argued that the Guidance departs from current law and that the Guidance should have been subject to public comment before being issued. Each also observed that one of the positions taken by the EEOC in the Guidance directly contradicts a Fourth Circuit decision, Young v. United Parcel Service, Inc., which the Supreme Court had decided to consider in its next term.

The Guidance does not have the force of law. Courts may consider the Guidance but are not obligated to accept it. Even if lower courts do not accept the Guidance, it will be applied by the EEOC to cases before it unless a Supreme Court decision comes to a different conclusion. Therefore, it is important to understand the EEOC’s current position on the PDA and its application to the ADA.

Pregnancy Discrimination Act

The PDA is only two sentences long. The first sentence has two clauses:

• The first clause provides that unlawful sex discrimination includes discrimination because of pregnancy, childbirth, or related medical conditions.
• The second clause states that “women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes . . . as other persons not so affected but similar in their ability to work. . . .”

The second sentence of the PDA concerns health insurance for abortions, which is not a focus of the Guidance. The Guidance includes extended discussion of the application of the first two clauses of the first sentence. It also discusses the interaction of the PDA and the ADA.

The Guidance illustrates the application of the first clause of the PDA by reviewing various nondiscrimination obligations that the PDA imposes on employers, including the following:

• Employers are prohibited from discriminating against a female worker because she might become or intends to become pregnant.
• An employer is prohibited from terminating the employment of a female worker who takes time off to undergo in vitro fertilization, as such a termination would not be made on the basis of the gender-neutral condition of infertility, but rather for the gender-specific quality of childbearing capacity.
• An employer should not make inquiries into whether an applicant or worker intends to become pregnant because such inquiries are treated as evidence of discriminatory animus. For instance, employers should refrain from asking 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.
• An employer may be prohibited from denying a female worker an employment opportunity because her pregnancy prevents her from meeting a particular job position’s weight lifting requirement. If the lifting requirement disproportionately excludes pregnant employees, the employer would need to prove that the lifting requirement is job related for the position in question and consistent with business necessity.
• An employer is prohibited from requiring a female worker to take leave because she is pregnant as long as she is able to perform her job.

Application of PDA to Light Duty and Other Modifications

One of the most controversial aspects of the Guidance is the EEOC’s interpretation of the second clause and its application to light duty opportunities and other modifications. Many employers provide light duty opportunities for employees who incur on-the-job injuries to control workers’ compensation costs.

In the Young case, the employer had a light duty program, which was limited to certain categories of workers, including those who had incurred on-the-job injuries. The plaintiff, who was pregnant, argued that the second clause of the PDA required that she receive the same opportunity for light duty as the employer gave to those who incurred on-the-job injuries. She relied on the portion of the second clause stating that pregnant women are entitled to the same treatment as non-pregnant employees who are “similar in their ability to work.” She contended that she was similar in her ability to work as those non-pregnant employees who were injured on the job, and therefore was entitled to the same light duty opportunities. The Young court rejected that argument, concluding that the second clause should not be read so expansively.

Despite the rejection of this argument by the Young court, and despite the fact that the Supreme Court has agreed to review the Young decision, the Guidance adopted the argument of the plaintiff in Young. Furthermore, the Guidance states that if an employer provides an accommodation to an employee with a disability, a pregnant employee who has similar limitations would be entitled to the same accommodation, regardless of whether the pregnant employee is disabled for ADA purposes. The Guidance states expressly that the EEOC “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 conclusion was one of the central points of criticism by Commissioners Lipnic and Barker. It could have far-reaching implications, as it provides a pregnant worker with the basis for any accommodation, regardless of disability, that an ADA-disabled worker of similar limitations receives.

Application of ADA to Pregnancy-Related Disabilities

The Guidance starts from the noncontroversial premise that “pregnancy itself is not an impairment within the meaning of the ADA, and thus is never on its own a disability,” but observes that the threshold for “disability” was substantially reduced by the ADA Amendments Act of 2008, making it more likely that there will be a number of circumstances in which a pregnancy-related impairment will lead to a reasonable accommodation obligation. The Guidance provides the following examples of reasonable accommodations that may be necessary to accommodate an ADA qualified individual who suffers from a pregnancy-related disability:

• Redistributing marginal or nonessential functions (for example, occasional lifting) that a pregnant worker cannot perform, or altering how an essential or marginal function is performed;
• 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;
• Allowing a pregnant worker placed on bed rest to telework where feasible;
• Granting leave in addition to what an employer would normally provide under a sick leave policy;
• Purchasing or modifying equipment, such as a stool for a pregnant employee who needs to sit while performing job tasks typically performed while standing; and
• Temporarily reassigning a pregnant worker to a “light duty” assignment/position if the employer does so for other employees who are similar in their ability or inability to work, unless the employer’s light duty policy uniformly restricts the number of light duty positions or the duration of light duty assignments.

Parental Leave

The Guidance also reiterates the EEOC’s position concerning parental leave policies. It states that an employer that provides workers with the ability to take parental leave – i.e., leave for purposes of bonding with a child and/or providing care for a child, as distinguished from a medical leave due to pregnancy complications or due to the physical effects of childbirth – must provide it on the same terms to similarly situated female and male workers. Thus, an employer that provides greater paid leave to mothers for the period following the completion of recovery from childbirth than it provides to new fathers violates this non-discrimination requirement.

Conclusion

The Guidance provides some useful examples of the application of non-discrimination principles under the PDA. It also illustrates the potentially broad reach of accommodation obligations under the ADA for pregnant workers who qualify as disabled under the ADA. It further takes the controversial position that non-disabled pregnant workers will be entitled to accommodations given to disabled workers in some circumstances, as well as to other modifications that employers give to selected categories of workers, such as light duty opportunities for those with on-the-job injuries. This creates risk for employers that do not offer such accommodations and modifications to non-disabled pregnant workers, at least until a decision by the Supreme Court in the Young case.