By Michael J. Burns, courtesy of SBAM Approved Partner ASE
Last week the Equal Employment Opportunity Commission (EEOC) for the first time in reportedly 30 years issued new enforcement guidance on pregnancy discrimination. The regulations seek to extend new employment protections for pregnant workers under the 1978 Pregnancy Discrimination Act (PDA) amendments to Title VII of the Civil Rights Act. The EEOC issued the new guidance and related fact sheet without the customary comment period and made them effective immediately.
To summarize this new guidance, the commissioners effectively establish EEOC’s position that employers must treat a pregnant employee who is temporarily unable to perform her job in the same manner as it treats other non-pregnant employees with similar limitations in their ability to work. This is not to say that the EEOC now considers pregnancy a disability under the Americans With Disabilities Act (ADA). But it seeks to establish pregnancy-related impairments as possible disabilities warranting protections.
On its face this seems reasonable enough; however until now the courts have consistently held that a pregnant worker is, as a practical matter, not entitled to “reasonable accommodation” as that term is defined by the ADA. No federal Court of Appeals has adopted this position; and in fact, those that have addressed the question have rejected it.
Critics of the EEOC and numerous labor attorneys who monitor the agency believe that this guidance is but the latest, and perhaps the most extreme case yet, of the Commission making law rather than interpreting it. The two (out of five) EEOC commissioners who voted against issuing the Guidance did so due to concerns of overreach.
EEOC Commissioner Victoria Lipnic, one of the dissenters, pointed out that the agency gets not only ahead of precedence but also of new decisions to come down from the Supreme Court in next year’s term. One case being heard next year, Young v. United Parcel Services, Inc., is to decide whether and to what extent an employer must provide pregnant employees with work accommodations. A decision by the Supreme Court holding the PDA restricts this duty to accommodate would make this new Guidance moot.
All that being said, what specifically does the EEOC’s Enforcement Guidance on Pregnancy Discrimination and Related Issues say? The following is taken directly from the EEOC’s fact sheet on the guidance:
- Current pregnancy. Under the PDA, an employer cannot fire, refuse to hire, demote, or take any other adverse action against a woman if pregnancy, childbirth, or a related medical condition was a motivating factor in the adverse employment action. This is true even if the employer believes it is acting in the employee’s best interest.
- Past Pregnancy. An employer may not discriminate against an employee or applicant based on a past pregnancy or pregnancy-related medical condition or childbirth. For example, an employer may not fire a woman because of pregnancy during or at the end of her maternity leave
- Potential Pregnancy. An employer may not discriminate based on an employee’s intention or potential to become pregnant. For example, an employer may not exclude a woman from a job involving processing certain chemicals out of concern that exposure would be harmful to a fetus if the employee became pregnant. Concerns about risks to a pregnant employee or her fetus will rarely, if ever, justify sex-specific job restrictions for a woman of childbearing capacity.
- Medical Condition Related to Pregnancy or Childbirth. An employer may not discriminate against an employee because of a medical condition related to pregnancy and must treat the employee the same as others who are similar in their ability or inability to work but are not affected by pregnancy, childbirth, or related medical conditions. For example, under the PDA, since lactation is a medical condition related to pregnancy, an employer may not discriminate against an employee because of her breastfeeding schedule.