Tuesday, July 15, 2014

EEOC Issues New Enforcement Guidelines Regarding Pregnancy Discrimination


Since the start of 2014, the EEOC has filed a string of lawsuits pursuant to the Pregnancy Discrimination Act of 1978 (“PDA”), with more lawsuits likely to follow.  The PDA prohibits employment discrimination on the basis of pregnancy, childbirth or related medical conditions, and requires employers to treat pregnant employees the same as any other similarly situated non-pregnant employee. The increased litigation should not come as a surprise, since in its Strategic Enforcement Plan, the EEOC announced it would prioritize issues relating to pregnancy-related limitations and the need for accommodations.

On July 14, 2014, the agency issued new enforcement guidelines regarding pregnancy discrimination.  This is the first comprehensive guidance issued by the EEOC since 1983, and in addition to addressing employers’ obligations under the PDA, it also discusses the application of the Americans with Disabilities Act (“ADA”) to pregnant employees and under what circumstances an employer must provide the reasonable accommodation required under the ADA.  Unlike the ADA,  the PDA itself does not impose a reasonable accommodation requirement on employers.

Although pregnancy itself is not a disability, pregnant workers may have impairments related to their pregnancies that qualify as disabilities under the ADA. Amendments to the ADA made in 2008 make it much easier than it used to be to show that an impairment is a disability. A number of pregnancy-related impairments are likely to be disabilities, even though they are temporary, such as pregnancy-related carpal tunnel syndrome, gestational diabetes, pregnancy-related sciatica, back pain, preeclampsia and post-partum depression.

An employer may not discriminate against an individual whose pregnancy-related impairment is a disability under the ADA and must provide an individual with a reasonable accommodation if needed because of a pregnancy-related disability, unless the accommodation would result in undue hardship, meaning significant difficulty or expense.

According to the EEOC guidelines, examples of reasonable accommodations that may be necessary for a pregnancy-related disability include:

·         Redistributing marginal or nonessential functions (for example, occasional lifting) that a pregnant worker cannot perform, or altering how an essential or marginal function is performed;

·         Modifying workplace policies by allowing a pregnant worker more frequent breaks or allowing her to keep a water bottle at a workstation even though the employer generally prohibits employees from keeping drinks at their workstations;

·         Modifying a work schedule so that someone who experiences severe morning sickness can arrive later than her usual start time and leave later to make up the time;

·         Allowing a pregnant worker placed on bed rest to telework where feasible;

·         Granting leave in addition to what an employer would normally provide under a sick leave policy;

·         Purchasing or modifying equipment, such as a stool for a pregnant employee who needs to sit while performing job tasks typically performed while standing; and

·         Temporarily reassigning an employee to a light duty position.
However, there is a sense among some legal commentators that the EEOC unwisely jumped the gun with the release of the guidelines, because less than two weeks earlier, the United States Supreme had announced it was going to review a case involving the very same issues.  There is the possibility that the guidelines the EEOC is offering to employers now, could end up in conflict with the decision ultimately handed down by the Court.

On July 1, 2014, the Court agreed to decide whether the PDA requires an employer who provides workplace accommodations to non-pregnant employees with physical limitations to also offer the same accommodations to pregnant employees who were similar in their ability or inability to work.  The case being appealed is Young v. United Parcel Service,[1] in which a pregnant driver for the company, whose job involved loading and delivering packages, claimed her rights under the PDA were violated when she was denied alternative work assignments during her pregnancy.  Under a collective bargaining agreement, the company provided such alternative work assignments to employees who were unable to perform their regular duties because of an on-the-job injury, or because of a condition or impairment that qualified as a disability under the ADA.  The district court granted summary judgment in favor of the company on the basis that Young could not show evidence of discrimination or that the policy was a pretext for discrimination.  The United States Court of Appeals for the Fourth Circuit affirmed the decision.  The Supreme Court will hear the case during its 2014-2015 term.

 In light of the release of the EEOC guidelines and in anticipation of the ruling by the Supreme Court, it would be a prudent practice for employers to carefully review and consider any reasonable accommodation requests related to pregnancy or pregnancy related conditions.
Mark Fijman is a labor and employment attorney with Phelps Dunbar, LLC, which has offices in Louisiana, Mississippi, Florida, Texas, Alabama, North Carolina and London. To view his firm bio, click here. He can be reached at (601) 360-9716 and by e-mail at fijmanm@phelps.com



[1] Young v. United Parcel Service, 707 F.3d 437 (4th Cir. 2013).