EEOC’s Current Enforcement Guidance on Pregnancy Discrimination

by Neli Kharbedia

To emphasize that it is unacceptable for employers to discriminate against their employees based on pregnancy, the Equal Employment Opportunity Commission (EEOC) released enforcement guidance regarding pregnancy discrimination.[1] According to the authorities of the EEOC, because more employees sued and prevailed based on pregnancy discrimination, the EEOC decided to explain employers’ duties based on the Pregnancy Discrimination Act (PDA) and the Americans with Disabilities Act (ADA).[2]

Under the PDA, “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 or inability to work.”[3] Most courts agree that it is consistent with the PDA for employers to accommodate pregnant employees “the same as similarly situated, non-pregnant employees.”[4] Similarly, the Fourth Circuit in Young v. UPS[5] decided that employers’ decisions are consistent with the PDA when there is no difference in how employers treat their pregnant and non-pregnant workers.[6] A pregnant employee, in Young v. UPS, was denied an accommodation, as her employer only provided light duty to its employees eligible under the ADA or to employees who were injured while working.[7]

The Supreme Court has agreed to re-examine the Fourth Circuit decision in Young v. UPS, in which the PDA does not obligate employers to accommodate pregnant employees with light duty when the employer provides light duty to some non-pregnant employees.[8] The new guidance issued by the EEOC disagrees with this idea.[9] According to the EEOC’s new guidance, under the PDA, employers have to provide light duty to their pregnant employees, if employers provide light duty to their nonpregnant employees with similar capacities to work.[10] It is not important if the impairment is because of “pregnancy, disability or injury” . . . “the focus is on whether the employees have a similar ability or inability to work.”[11] Thus, according to David Fram, director of ADA and equal employment opportunity services for the National Employment Law Institute in Denver, “the EEOC has imported an obligation under one federal statute—the ADA’s reasonable accommodation requirement—into another law, the PDA.”[12]

According to Kentucky law student Jennifer Yue, obligating employers to provide accommodations may have disadvantages for employers who employ women who need light duty accommodations.[13] The employers’ productivity may decline by accommodating their employees with light duties, and some small businesses may need to “creat[e]” work for pregnant employees.[14] Moreover, according to the EEOC, the ADA protections may apply to some disabilities connected to pregnancy, “if they substantially limit one or more major life activities” even though pregnancy is not a disability.[15] Meanwhile, Sheerine Alemzadeh has argued that pregnancy should be considered as a disability, and cases should be decided separately to decide if pregnancy influences an employee’s “major life activities.”[16]

Employers have to provide reasonable accommodations, unless it is an “undue hardship” for an employer to accommodate its employee.[17] Some examples of the reasonable accommodations for pregnant women are reallocating parts of the job that are not mandatory to other employees, changing employers’ practices, changing schedule, permitting an employee to work while at home, giving extra leaves, providing equipment, and offering a light duty.[18] Because 2008 changes to the ADA offer protection for more types of disabilities, it was expected that short-term disabilities associated with pregnancy that cause limitations related to work would be considered “substantially limiting.”[19] Therefore, since before the new guidance most of the employers did not interpret PDA as including “a reasonable accommodation obligation,” employers need to change their old practices.

[1] Steven Greenhouse, Equal Opportunity Employment Officials Take New Aim at Pregnancy Bias, N.Y. Times (July 14, 2014), http://www.nytimes.com/2014/07/15/business/equal-opportunity-employment-officials-take-new-aim-at-pregnancy-bias.html.

[2] Id.

[3] 42 U.S.C.A. §2000e(k); EEOC, Enforcement Guidance: Pregnancy Discrimination and Related Issues, EEOC (July 14, 2014), http://www.eeoc.gov/laws/guidance/pregnancy_guidance.cfm.

[4] Rozlyn Fulgoni-Britton & Joel P. Schroeder, Tackling the Challenges of Accommodating Pregnant Workers Under the Pregnancy Discrimination Act and the Americans with Disabilities Act, 61-FEB Fed. Law. 35, 35 (2014).

[5] Young v. United Parcel Service, Inc., 707 F.3d 437 (4th Cir. 2013), cert. granted 134 S. Ct. 2898 (2014).

[6] Supra note 4.

[7] Id.

[8] Kevin P. McGowan, EEOC Issues New Enforcement Guidance on Pregnancy Bias, bna (July 15, 2014), http://www.bna.com/eeoc-issues-new-n17179892312/.

[9] Susan L. Nardone & Michael J. Riccobono, EEOC “Delivers” Guidance on Pregnancy Discriminaiton, metrocorpcounsel (Aug. 25, 2014), http://www.metrocorpcounsel.com/articles/29701/eeoc-“delivers”-guidance-pregnancy-discrimination.

[10] McGowan, supra note 8.

[11] Nardone & Riccobono, supra note 9.

[12] McGowan, supra note 8.

[13] Jennifer Yue, Note, The Flood of Pregnancy Discrimination Cases: Balancing the Interests of Pregnant Women and Their Employers, 96 Ky. L.J. 487, 501, 502 (2007-2008).

[14] Id.

[15] McGowan, supra note 8; EEOC, Questions and Answers About the EEOC’s Enforcement Guidance on Pregnancy Discrimination and Related Issues, EEOC, http://www.eeoc.gov/laws/guidance/pregnancy_qa.cfm (last visited Sept. 26, 2014).

[16] Sheerine Alemzadeh, Claiming Disability, Reclaiming Pregnancy: A Critical Analysis of the ADA’s Pregnancy Exclusion, 27 Wis. J.L. Gender & Soc’y 1, 3, 4, 12-17, 35 (2012).

[17] EEOC, supra note 15.

[18] Id.; McGowan, supra note 8.

[19] Nardone & Riccobono, supra note 9.

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