Last week, the Equal Employment Opportunity Commission (EEOC) released an updated Enforcement Guidance on Pregnancy Discrimination. Some people are saying that the EEOC now considers pregnancy a disability and that pregnant workers are now entitled to preferential treatment. On July 1, 2014, the United States Supreme Court agreed to hear the appeal of a Fourth Circuit Court of Appeals, Young v. UPS Case No. 11-2078 , which held that UPS did not owe accommodations to a pregnant driver. This sounds like a contradiction. What’s up with that? with the EEOC and the 4th Circuit Court of Appeals? Join The Emplawyerologist after the jump to find out! Young v UPS’s facts are essentially the reason for the EEOC’s updated Enforcement Guidance (that, and its previous guidance was about 30 years old!). A pregnant driver with a lifting restriction, first of 20 pounds and then to 10 pounds or less asked to be put on light duty. UPS’s policy was to provide light duty only to those who were either injured on the job or who qualified as disabled under the ADA. UPS said that Ms. Young was not “disabled”. (the case arose prior to the enactment of the ADAAA, which explicitly defines “disability” very broadly) and she was not injured on the job. UPS said lifting up to 70 pounds was an essential job function. Therefore, according to UPS, she was not qualified to perform her job. UPS therefore told her not to return to work while the lifting restriction was in place. UPS maintained that position despite Ms. Young pointing out a) that drivers almost never had to lift any packages anywhere near that weight b) on those few occasions where heavy lifting was necessary, she could either i) use a hand truck or ii) get help from a co-worker. Ms. Young sued for gender, pregnancy and race discrimination. Both the District Court and the 4th Circuit Court of Appeals found that a) Ms. Young did not prove that she was treated differently than similarly situated non-pregnant workers and b) she was not “disabled” and ruled for UPS.
Before we go further, the PDA amends Section Title VII of the Civil Rights Act as follows:
The terms ‘because of sex’ or ‘on the basis of sex’ include, but are not limited to, because of or on the basis of pregnancy, childbirth, or related medical conditions; and women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes, including receipt of benefits under fringe benefit programs, as other persons not so affected but similar in their ability or inability to work, and nothing in section 703(h) of this title shall be interpreted to permit otherwise. This subsection shall not require an employer to pay for health insurance benefits for abortion, except where the life of the mother would be endangered if the fetus were carried to term, or except where medical complications have arisen from an abortion: Provided, That nothing herein shall preclude an employer from providing abortion benefits or otherwise affect bargaining agreements in regard to abortion.”
The Enforcement Guidance update was already in process before the Fourth Circuit decided Young v. UPS. For the EEOC, here lies the crux of the matter: If the PDA does not actually require an employer to accommodate a pregnant worker and if pregnancy is not a disability, then a pregnant worker suffering complications and needing accommodations short of leave of absence might have no recourse. Effectively then she may either lose her job or suffer other adverse employment consequences because of her pregnancy. On the other hand, is accommodating a pregnant worker akin to giving her preferential treatment (or as the 4th circuit phrased it, “most favored nation status”?)
The full title, “Enforcement Guidance: Pregnancy Discrimination and Related Issues“ is the first hint as to the EEOC’s position. Apparently the EEOC wants employers to regard all the anti-discrimination laws as interrelated. In short, the EEOC identifies the following issues and takes the following positions on each:
- Pregnancy discrimination includes discrimination based on current or past pregnancy and on a woman’s potential to become pregnant.
- Lactation is a pregnancy-related medical condition and the PDA prohibits adverse treatment of lactating women.
- The PDA applies to issues related to leave for pregnancy and for medical issues related to pregnancy;
- The PDA requires employers to provide parental leave to men and women on the same terms as each other and as a woman who has given birth and takes additional leave to bond with the baby;
- While pregnancy itself is not a disability, pregnancy-related medical impairments may be a disability within the meaning of the ADAAA entitling the employee to a reasonable accommodation (had the facts of Young occurred after 2009, arguably, the ruling might have been different.)
So now what? The Enforcement Guidance includes a Best Practices Section. Here are some of them:
- Develop a written policy defining unlawful conduct based on pregnancy, childbirth and related medical conditions and protecting against retaliation; provide multiple avenues for complaint and respond to and investigate complaints promptly and thoroughly; take prompt remedial action;
- Train managers on your policy and on all relevant laws; review relevant federal and state laws periodically;
- Conduct employee surveys and review policies and practices that may disadvantage women based on pregnancy, childbirth or related medical conditions or that can perpetuate the effects of historical discrimination;
- During interviews or performance reviews, focus on job qualifications; do not ask about pregnancy, family, plans to have a family or related medical issues; develop specific, job-related qualification standards unrelated to pregnancy, childbirth or related medical conditions and apply them equally to all eligible employees; notify all eligible employees of job openings; base all hiring decisions on qualifications and legally appropriate criteria; when possible explain reasons for not hiring or promoting; document all hiring and promotion decisions and retain documentation for at least as long as required by statute;disclose information about fetal hazards and, when possible accommodate resulting requests for transfers.
- Review any restrictive leave policies (e.g. shorter leave for probationary workers) to see if they disproportionately impact pregnant women; similarly review policies that may limit flexibility (e.g. fixed work hours, mandatory overtime), light duty, compensation and performance appraisal systems for disparate impact on those affected by pregnancy, childbirth or related medical conditions and revise if feasible.
The Enforcement Guidance is the EEOC’s interpretation of how the PGA, and the interplay between it and the ADA, Title VII and in some cases, GINA. Tying aspects of the PGA with other anti-discrimination laws, both broadens the category of “similarly situated non-pregnant workers” and minimizes the chances that a pregnant worker will get preferential treatment. Arguably she would get the same treatment as other workers that would be protected under the ADAAA or other anti-discrimination laws. The U.S. Supreme Court, when it hears Young, may follow the Enforcement Guidance. It may also overrule it. (Remember EEOC Enforcement Guidances are not law). What should you do in the meantime? Consult with in-house or competent employment counsel for help implementing at least some of the Best Practices! Coming up next week: a series on what employers can learn from Wal-Mart-unless I find something else I feel we must address first!
Disclaimer: This post’s contents are for informational purposes only, are not legal advice and do not create an attorney-client relationship. Always consult with competent local employment counsel on any issues discussed here.
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