EEOC Issues New Guidance on Pregnancy Discrimination*
On July 14, 2014, the U.S. Equal Employment Opportunity Commission (EEOC) issued its “Enforcement Guidance on Pregnancy Discrimination and Related Issues,” the first comprehensive update since 1983.[1] EEOC Chair Jacqueline A. Berrien explained that “[d]espite much progress, . . . [EEOC] investigations have revealed the persistence of overt pregnancy discrimination, as well as the emergence of more subtle discriminatory practices.”[2] The EEOC offers the guidance, peppered with illustrative examples, as a reference tool to promote compliance with the laws prohibiting pregnancy discrimination. Pervading the guidance is an admonition to avoid stereotyping and assumptions about the ability or inability of women who are pregnant to work.
The EEOC guidance sets forth how the Pregnancy Discrimination Act (PDA) and Title I of the Americans with Disabilities Act (ADA) apply to pregnant workers; it also notes other laws, such as the Family and Medical Leave Act (FMLA), that may affect pregnant workers and suggests “best practices” for employers to comply with these laws. This article summarizes the EEOC guidance and discusses two pregnancy-related disability cases under the ADA Amendments Act of 2008 (ADAAA).
The PDA
The bulk of the EEOC guidance focuses on the PDA. Congress enacted the PDA to provide two basic protections against pregnancy discrimination in the workplace. First, by amending the definition section of Title VII, the PDA prohibits employers from discriminating against employees on the basis of pregnancy, childbirth, or related medical conditions.[3] Second, employers must treat “women affected by pregnancy, childbirth, or related medical conditions . . . the same . . . as other persons not so affected but similar in their ability or inability to work.”[4]
The EEOC guidance explains that the coverage of the PDA is broad: it applies to potential, intended, current, or past pregnancy, to medical conditions related to pregnancy or childbirth, and to all employment decisions (termination, medical benefits, leave, etc.).[5] An employment decision violates Title VII if it is based on an employer’s stereotypes or assumptions about a worker who is currently pregnant, such as anticipated attendance problems. An employee is also protected from adverse employment actions based on a past pregnancy, though a causal connection between the two may be more difficult to prove. PDA protections for past pregnancy, however, do not include protections for childcare responsibilities.
The EEOC guidance portrays a variety of situations invoking protections related to a worker’s potential or intended pregnancy. The guidance recites a holding from the U.S. Supreme Court that concerns about reproductive health risks to fertile women failed to justify sex-based job restrictions.[6] Similarly, employers cannot take adverse employment actions against an employee because she intends or is trying to become pregnant, and the EEOC cautions employers from asking employees whether they intend to become pregnant.
Infertility treatments may fall within the ambit of the PDA, such as when a worker takes leave for infertility treatments, but medical benefits need not provide coverage for them. On the other end of the spectrum, an employer cannot discriminate based on a female worker’s use of contraceptives, including by denying medical benefits for contraception. The guidance explicitly declined to analyze the interplay between Title VII and the Supreme Court’s decision in Burwell v. Hobby Lobby Stores, Inc. — U.S. –, 134 S. Ct. 2751 (2014).[7]
The last category of pregnancy protection in the PDA is a medical condition related to pregnancy or childbirth. Generally, leave and medical benefits for pregnancy-related conditions must mirror those for other medical conditions. Lactation and breastfeeding specifically must be permitted on the same basis as other employees are permitted to address similarly limiting medical conditions. Although an employer need not provide medical benefits to cover abortions, female workers are protected from adverse employment actions based on their decisions related to abortion.
The EEOC guidance also explains the PDA requirement that employers treat “women affected by pregnancy, childbirth, or related medical conditions . . . the same . . . as other persons not so affected but similar in their ability or inability to work.” “[A]n employer is obligated to treat a pregnant employee temporarily unable to perform the functions of her job the same as it treats other employees similarly unable to perform their jobs, whether by providing modified tasks, alternative assignments, leave, or fringe benefits.” The EEOC guidance suggests that employers apply their ADA policies and procedures to pregnant workers with work-related limitations to ensure the same treatment of workers similar in their ability or inability to work. In this way, the PDA provides to pregnant workers the protections and responsibilities under the ADA, as amended, without requiring them to qualify as having a disability.
On this point, the EEOC guidance explicitly disagrees with the Fourth Circuit’s decision in Young v. United Parcel Service, Inc.[8] In Young, UPS had a policy that provided light-duty work to an employee injured on the job or disabled under the ADA, but not to a worker whose pregnancy limited her ability to perform her job duties. One of the essential functions of Ms. Young’s job was to lift packages weighing up to 70 pounds. Due to Ms. Young’s pregnancy, her care providers restricted her from lifting more than 20 pounds. UPS determined that she was unable to perform the essential functions of her job and was ineligible for light duty.
The Fourth Circuit rejected Ms. Young’s pregnancy discrimination claim. First, the court concluded that UPS complied with the PDA because its policy “treat[ed] pregnant workers and nonpregnant workers alike.”[9] Second, the court distinguished workers subject to pregnancy-related impairments from employees disabled under the ADA or injured on the job, and the court found, therefore, that they were not similar in their ability or inability to work.[10] The Supreme Court has granted certiorari, and oral argument is scheduled for December 3.
The EEOC guidance provides a framework to analyze employment decisions under the PDA and also provides concrete examples of equal benefits for pregnant workers. Discrimination in contravention of the PDA may manifest as disparate treatment or disparate impact. Disparate treatment means that pregnancy, childbirth, or a related medical condition was a motivating factor for an adverse employment action and includes an employer’s failure to provide a workplace free from harassment. Although the defense of bona fide occupational qualification may be available in some circumstances, the EEOC interprets this exception very narrowly. Disparate impact exists when a facially neutral policy disproportionately affects pregnant women.
The ADA and ADAAA
Pregnant employees may enjoy the protections of laws other than the PDA, and the EEOC guidance provides an overview of how the ADA and the ADAAA may explicitly apply to pregnant workers. In broad terms, Title I of the ADA prohibits employment discrimination based on the disability of an employee or applicant.[11] A disability is “a physical or mental impairment that substantially limits one or more major life activities.”[12] The ADA also requires reasonable accommodations for employees with disabilities, unless the employer can show undue hardship.[13]
Congress enacted the ADAAA in 2008 to supersede Supreme Court decisions that had construed the ADA narrowly, especially with respect to determining whether an individual has a disability.[14] Prior to the enactment of the ADAAA, some courts had found that pregnancy-related complications could qualify a worker as disabled, though the standard was high, as courts have generally found that a normal pregnancy should not be viewed as a disability.[15] As the EEOC guidance specifically notes, “some pregnant workers may have impairments related to their pregnancies that qualify as disabilities under the ADA, as amended.”
The EEOC guidance further notes that some recent district court decisions have applied the more stringent standards from old case law to analyze whether a pregnant worker had a disability under the ADAAA.[16] For example, in Sam-Sekur v. Whitmore Group, Ltd., the court specifically noted that the ADAAA intended to broaden coverage for people with disabilities.[17] Nonetheless, the court cited pre-ADAAA case law for the rule that, generally, “complications arising from pregnancy do not qualify as disabilities under the ADA.”[18] The court granted the employers’ motion to dismiss her ADA claim, albeit with leave to replead.[19]
An independent review of ADAAA case law involving pregnant workers revealed a case in which a district court acknowledged the broadened coverage of the ADAAA, yet still held that a pregnant worker was not disabled.[20] Specifically, in Abbott v. Elwood Staffing Serv., Inc.,[21] the court granted the employer’s motion for summary judgment because the employee had failed to establish that she had a disability. The employee had pled that she experienced vaginal bleeding after straining to install doors on a vehicle during her shift and that her doctor restricted her from lifting more than 25 pounds, climbing in and out of cars, and bending.[22] The court held that this evidence was insufficient to give rise to a disability, in part by concluding that the employee had not alleged a major life activity that was substantially limited.[23]
Practical Tips for Employers
The EEOC guidance closes by briefly highlighting other laws that may implicate pregnant workers, such as FMLA and breaks for nursing mothers, and providing “best practices” for employers to avoid discriminating against employees who are, were, or may become pregnant. A sampling of “best practices” includes the following:
- Ensuring that the employer has PDA- and ADA-compliant policies, which specifically explain what conduct might constitute discrimination based on pregnancy, childbirth, and related medical conditions;
- Surveying employees and reviewing practices to address those that may disadvantage women affected by pregnancy, childbirth, or related medical conditions;
- Structuring light-duty policies “so as to provide pregnant employees access to light duty equal to that provided to people with similar limitations on their ability to work”; and
- Stating in policies that reasonable accommodations may be available to individuals with temporary impairments, including those related to pregnancy.
The EEOC guidance underscores that employers should avoid resorting to stereotypes or assumptions when making employment-related decisions.
Megan Lemire, at Lemire & Hirano in Portland, focuses on employment and civil rights law.
*This article was originally published in the November 2014 issue of the Oregon Civil Rights Newsletter, a publication of the Oregon State Bar Civil Rights Section.
[1] Press Release, U.S. Equal Emp’t Opportunity Comm’n, EEOC Issues Updated Enforcement Guidance on Pregnancy Discrimination And Related Issues (July 14, 2014) available at http://www.eeoc.gov/eeoc/newsroom/release/7-14-14.cfm.
[2] Id.
[3] 42 U.S.C. §§ 2000e(k), 2000e-2 (2012).
[4] 42 U.S.C. § 2000(e)(k).
[5] U.S. Equal Emp’t Opportunity Comm’n, No. 915.003, Enforcement Guidance: Pregnancy Discrimination and Related Issues (2014) [hereinafter EEOC Guidance].
[6] Id. (citing Int’l Union, United Auto., Aerospace & Agric. Implement Workers of Am. v. Johnson Controls, 499 U.S. 187 (1991)).
[7] Id. at n.39. Burwell held that . . . .
[8] 707 F.3d 437, 449 (4th Cir. 2013), cert. granted, 134 S. Ct. 2898 (mem.) (July 1, 2014) (applying the ADA prior to the amendments).
[9] Id. at 449.
[10] Id. at 450–451.
[11] 42 U.S.C. § 12112 (2012).
[12] 42 U.S.C. § 12102(1)(A).
[13] 42 U.S.C. § 12112(b)(5).
[14] Pub. L. No. 110-325 (2008).
[15] EEOC Guidance, supra note 5.
[16] Id. at n.153.
[17] No. 11-cv-4938 (JFB)(GRB), 2012 WL 2244325, at *6 (E.D. N.Y. June 15, 2012).
[18] Id. at *8.
[19] Id. at *9.
[20] As of the writing of this article, I found no federal appellate court opinion that has applied the ADAAA in the context of pregnant workers.
[21] No. 1:12-CV-2244-VEH, 2014 WL 3809808 (N.D. Ala. July 31, 2014).
[22] Id. at *15, *17.
[23] Id. at *30–32.
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