On July 14, 2014 the Equal Employment Opportunity Commission (EEOC) issued updated enforcement guidelines accompanied by a question and answer guide on pregnancy discrimination and related workplace issues (“the Guidance”). This is the first time in over 30 years that the EEOC has provided detailed insight on this subject and its guidance did not come without some controversy.
The Guidance was approved following a 3-2 vote along partisan lines with Commissioners Victoria A. Lipnic and Constance S. Barker (both Republican appointees) voting against approval. Commissioners Lipnic and Barker each issued statements criticizing, among other things, the EEOC’s failure to make the Guidance available for public review and the timing of the Guidance, which stakes out the EEOC’s position on some open issues currently before the courts.
For example, in the Guidance the EEOC takes the positions that the Pregnancy Discrimination Act (PDA) requires employers to provide light duty for a pregnant worker if the employer has a policy or practice limiting light duty to workers injured on the job or to employees with disabilities under the ADA. Commissioners Lipnic and Barker both were of the view that the EEOC should not take this position, which would be a new interpretation of the PDA, especially when the U.S. Supreme Court may reject this position in a case it is scheduled to hear next term. See Young v. United States Parcel Ser., Inc., 707 F.3d 437 (4th Cir. 2013, cert. granted, 81 USLW 3602 (U.S. July 1, 2014) (No. 12-1226).
Similarly, Commissioner Barker also questioned the EEOC’s position with respect to contraception mandates under Title VII in light of the Supreme Court’s recent decision in Burwell v. Hobby Lobby Stores, Inc., — S.Ct. —-, 2014 WL 2921709 (U.S. June 30, 2014). According to the Guidance, an employer can violate the PDA by providing health insurance that excludes coverage of prescription contraceptives; however it also states that the EEOC’s position on this issue does not address whether certain employees might be exempt from Title VII’s requirements under the Religious Freedom Restoration Act (RFRA) in light of the Hobby Lobby decision. At a minimum, Barker took the position that the Supreme Court’s decision in Hobby Lobby requires a full and substantive review of the EEOC’s guidance on this topic.
Overview of Enforcement Guidance
The enforcement guidance begins with an overview of Title VII’s prohibition against discrimination on the basis of pregnancy (current, past or potential pregnancy), childbirth or related medical conditions. It describes the individuals covered under the PDA, the various ways pregnancy discrimination can be demonstrated, and analyzes what it means to provide pregnant employees equal access to employment benefits such as light duty, leave and health benefits.
The guidance also addresses the impact of the ADA’s definition of “disability,” which was broadened as a result of the ADA Amendments Act of 2008 (ADAAA), on employees with pregnancy-related impairments. Specifically, the guidance explains when employees with pregnancy-related impairments would be entitled to a reasonable accommodation and provides examples of specific accommodations employers can provide to assist pregnant workers (i.e. allowing a pregnant employee to take more breaks or purchasing a stool for a pregnant employee who needs to sit when performing job tasks typically performed while standing).
The guidance continues with a discussion of other legal requirements affecting pregnant workers, including the Family Medical Leave Act’s (FMLA) requirement to provide pregnancy-related or child care leave for covered employees; the Patient Protection and Affordable Care Act’s requirement that employers provide reasonable break time and a private place, other than a bathroom, for breastfeeding employees to express milk until the child’s first birthday; and state laws which may afford pregnant employees more expansive protections than that provided under federal law.
Finally, the guidance provides a list of suggested best practices.
What this Means for Employers
While the Guidance generally does not break new ground, it does highlight the EEOC’s current position on some areas of unsettled law. The Supreme Court’s decision in Young, however, may very well make the EEOC’s Guidance regarding several of these issues moot. In the interim, employers should carefully review these guidelines and update policies and practices as appropriate.
If you have any questions regarding this updated EEOC guidance please contact your Proskauer lawyer