EEOC CHANGES RULES ON PREGNANCY DISCRIMINATION
Michael G. Trachtman |
On June 14, 2014, the EEOC released an “Enforcement Guidance” on pregnancy discrimination. The Guidance is extremely noteworthy for at least two reasons. First, it makes clear that pregnancy discrimination will be front and center on the EEOC’s radar screen. Second, and much more important, it redefines what it means for an employer to discriminate on the basis of pregnancy.
The upshot is that many employers will need to change how they treat pregnant employees, and they will need to do it now.
The Pregnancy Discrimination Act (“PDA”) has always prohibited discrimination against women who are pregnant, have in the past been pregnant, or may in the future become pregnant. But, says the EEOC, the PDA has not been adequately enforced. The EEOC Chair, in announcing the Guide, stated that recent EEOC investigations “revealed the persistence of overt pregnancy discrimination, as well as the emergence of more subtle discriminatory practices.” In response, the Guidance makes clear that the EEOC will now take an aggressive and expansive stance toward pregnancy discrimination.
This is a key message: the EEOC will ramp up its pregnancy discrimination enforcement efforts, and in response, employers need to ramp up their compliance efforts. But that is not the most significant message that the Guide is sending to employers. Not even close.
Up till now, the PDA has been interpreted to mean that pregnancy is not a disability under the ADA. The various complications that result from pregnancy can be ADA disabilities, but a woman who is pregnant and not suffering complications does not fall within the ADA and, therefore, an employer need not offer her the type of reasonable accommodations it needs to offer “disabled” employees.
The Guide takes a different view. It states that to the extent a normal, healthy pregnancy limits a woman’s ability to perform certain job duties, and to the extent that an employer would accommodate an employee with similar limitations caused by a “disability,” the employer must also accommodate the pregnant woman, as if pregnancy were a “disability.” Otherwise, says the EEOC, the employer would be discriminating against the pregnant woman on the basis of her pregnancy.
Here’s how the EEOC put it:
An employer has a policy or practice of providing light duty, subject to availability, for any employee who cannot perform one or more job duties for up to 90 days due to injury, illness, or a condition that would be a disability under the ADA. An employee requests a light duty assignment for a 20-pound lifting restriction related to her pregnancy. The employer denies the light duty request, claiming that pregnancy itself does not constitute an injury, illness, or disability, and that the employee has not provided any evidence that the restriction is the result of a pregnancy-related impairment that constitutes a disability under the ADA. The employer has violated the PDA because the employer’s policy treats pregnant employees differently from other employees similar in their ability or inability to work.
That’s big news. Forget what you’ve heard about a healthy pregnancy not being a “disability.” From a hyper-technical point of view it may not be, but in most contexts employers will now have to treat pregnancy as if it is a disability. The rules have changed, and the expansiveness of the EEOC’s view even garnered some strident, internal dissents within the EEOC itself. The Guide is not law, but it reflects the position the EEOC will take until the Courts or the Congress say it can’t.
How this view will be applied in real world situations will emerge over the coming months, but this much is now clear: in addition to being on guard for potential pregnancy discrimination, employers must take a second look at how they accommodate pregnant women who, even though they are suffering no complications, may need some assistance in performing the essential duties of their jobs.
This MEA Member Alert was provided by:
Michael G. Trachtman
Powell Trachtman Logan Carrle & Lombardo, P.C.
MEA General Counsel
*This Alert is provided for general informational purposes only and does not constitute legal advice.