EEOC Addresses Interplay Between Pregnancy Discrimination Act and ADAA
On July 14, 2014, the EEOC issued Updated Enforcement Guidance on Pregnancy Discrimination, as well as a set of Questions and Answers and a Fact Sheet related to that Guidance. This is the EEOC's first detailed update to its pregnancy bias guidance since 1983.
In short, the EEOC reiterated or emphasized its opinion of expanded protection under the 2008 Amendments to the Americans with Disabilities Act (ADAAA). Mainly, the EEOC addresses the interplay between their more expansive interpretations of the ADAAA and the Pregnancy Discrimination Act (PDA), which does not include a “reasonable accommodation” requirement.
Expanded Obligation to Reasonably Accommodate Pregnant Employees
The Guidance restates the EEOC's position that since the passing of the ADAAA, it is now easier to demonstrate that pregnancy-related impairments are “disabilities” under the ADAAA entitled to a reasonable accommodation. The Guidance requires employers to consider providing light duty, alternative assignments, disability leave, or extended unpaid leave as “reasonable accommodations” for pregnant employees. Also, an employer cannot deny light duty to a pregnant worker based on a policy that limits light duty assignments to those with on-the-job injuries. Other examples of “reasonable accommodations” noted by the Guidance include:
- Redistributing marginal or nonessential job functions, or altering how a function is performed;
- Modifying policies concerning work breaks;
- Modifying work schedules to accommodate severe morning sickness; and
- Purchasing or modifying equipment, such as a stool or seat for the pregnant worker.
Expansive View of Light Duty for Pregnant Employees
Under the Guidance, an employer must provide light duty for pregnant employees if it provides it to employees who are not pregnant but who are similar in their ability or inability to work. The Guidance states: “Thus, for example, an employer must provide light duty for pregnant workers on the same terms that light duty is offered to employees injured on the job who are similar to the pregnant worker in their ability or inability to work.”
The Guidance also provides that the PDA protects pregnant workers from discrimination, even if taking such actions could be in the employee's best interest. For example, it is unlawful for an employer to require a pregnant employee who is able to perform her job to take leave during pregnancy or after childbirth.
Related Supreme Court Ruling Expected
The EEOC issued the Guidance without first making it available for public comment, which is unusual. This may be related to an upcoming U.S. Supreme Court case. The Supreme Court decided a few weeks ago to hear an appeal from the Fourth Circuit Court of Appeals regarding the Young v. United Parcel Service, Inc. decision.
The Court's decision in Young will address significant questions covered by the Guidance, mainly whether, and in what circumstances, an employer that provides work accommodations to non-pregnant employees with work limitations must provide work accommodations to pregnant employees who are similar in their ability or inability to work. The Fourth Circuit Court of Appeals had answered this question in the negative, creating a split in the circuits. The Supreme Court’s decision in Young could, however, moot or contravene the Guidance. As a result, the timing of the Guidance has been severely criticized.
In sum, if you currently have a light duty or return to work program for employees injured on the job, you should review such a program to ensure compliance with the EEOC's updated Guidance related to pregnancy issues.
Because of the interplay in the various outlined laws (not to mention any state specific requirements that may exist within the jurisdictions where you do business), dealing with pregnancy-related issues is becoming extremely complex. If you have any questions or concerns, please contact your usual Stinson Leonard Street contact.