On July 14, 2014, the U.S. Equal Employment Opportunity Commission (EEOC), over the dissent of two of its five members, issued an Enforcement Guidance (Guidance) on pregnancy and related issues. While the Guidance does not have the same legal effect as EEOC regulations, it is important for employers because it indicates the positions EEOC will take when investigating discrimination charges and litigating claims.

In many respects, the Guidance sets forth well-established principles. In other respects, the Guidance adopts a broad view of the Pregnancy Discrimination Act (PDA), including a position that employers must make accommodations for pregnant employees that they would not make for similarly situated male or female employees. This position is directly contrary to a decision issued last year by a federal court of appeals in Young v. United Parcel Service, Inc., which the Supreme Court agreed to review two weeks before the EEOC issued the Guidance.

This alert will briefly review the PDA and the Guidance, will highlight some of the more controversial portions of the Guidance and will set forth what employers should do to comply with the Guidance. Review copies of the Guidance and questions and answers the EEOC posited regarding the Guidance.

History and Overview of the PDA

The PDA was enacted in 1978 to overrule the Supreme Court's decision in General Electric Corp. v. Gilbert, which held that a disability plan that covered non-occupational illnesses and injuries, but not pregnancy, did not violate Title VII. The law amended Title VII by defining discrimination because of sex as including “pregnancy, childbirth or related medical conditions.” The law also provided that "women affected by pregnancy … shall be treated the same for all employment-related purposes … as other persons not so affected by similar in their ability or inability to work…."

In 1983, the Supreme Court held that the PDA "makes clear that it is discrimination to treat pregnancy-related conditions less favorably than other medical conditions." Newport News Shipbuilding & Dry Dock v. EEOC. Based on this history, the standard advice given to employers has been to treat pregnancy, child-birth and related conditions the same as any other illness or medical condition.

Summary of the Guidance

Intentional Discrimination

The Guidance reiterates the basic legal principle that it is unlawful for employers to knowingly discriminate against women who are pregnant, have been pregnant, want to become pregnant and/or based on conditions related to pregnancy. As part of this analysis it gives examples of how employees can prove that their employer knowingly discriminated against them. For example, if an employer terminates an employee shortly after an employee announces she is pregnant, that timing can be used as evidence of unlawful intent. Similarly, if an employee is terminated after telling her supervisor that she is trying to become pregnant, in response to which the supervisor tells the employee that he does not know how he can replace her, that can be used as evidence of unlawful intent. Finally, terminating an employee because of lactation, breastfeeding or medical conditions which relate to pregnancy would be unlawful.

The Guidance also reiterates that harassing an employee based on pregnancy or a related condition would be unlawful.

Stereotypes and Assumptions

The Guidance provides that making decisions based on assumptions or stereotypes of what pregnant women can or should do is unlawful, even if the employer's intent is to protect the employee. This has been the law since at least the Supreme Court's 1991 decision in UAW v. Johnson Controls, in which the court held that the employer's policy of not allowing pregnant employees to work in a particular area of the plant because of potential risk to the fetus was unlawful. Similarly, employer-imposed weight restrictions on pregnant employees would be unlawful.

Light Duty, Leaves of Absence and Accommodations

The Guidance points out that if an employer had a certain amount of light duty positions which where all filled, it would not violate the PDA to refuse to create a new light duty position for a pregnant employee. On the other hand, if there is evidence that the employer had exceeded the standard number of light duty positions in the past, it would violate the PDA to refuse the same type of benefit for a pregnant employee.

The Guidance goes further, however, and says that if light duty was reserved for work-related injuries suffered by both men and women, it would violate the PDA not to grant the same benefit to a pregnant employee. This is one example in the Guidance that conflicts with the Young v. UPS case, which the Supreme Court has agreed to hear.

Similarly, the Guidance says that even where an employer has a uniformly imposed policy requiring an employee to be employed for a certain time period to be eligible for a leave of absence, that policy could not be enforced against pregnant employees because it would have an adverse impact on pregnant women.

Health Insurance

The Guidance provides that insurance policies must treat pregnancy and related conditions the same as any other condition, although an insurance plan does not have to cover abortions except in certain limited exceptions.

The Guidance goes further, however, in saying that the insurance plan must cover contraceptives on the same basis as any other medical cost designed to prevent the occurrence of other medical conditions. In the Q & A issued along with the Guidance, the EEOC notes the Supreme Court's recent decision in the Hobby Lobby case, holding that closely held corporations could object to paying for such coverage on religious grounds, but that the Guidance did not take a position on that case.

Parental Leave

Some employers provide their employees with paid or unpaid leaves of absence beyond the time period when the female employee is unable to work due to her pregnancy and/or child birth in order to spend time with their new child. This is often referred to as “parental” or “parenting” leave. The Guidance reiterates the well-established principle that if an employer provides “parenting leave” as opposed to medical-related leave to employees, it must provide the same benefit to both its male and female employees.

Interplay with the ADAAA

The Guidance points out that even though pregnancy itself is not a disability, under the amendments to the Americans With Disabilities Act (ADA), it is now much easier to establish a disability (e.g., the ADA regulations now provide that conditions can last less than six months and still constitute a disability), and there are many pregnancy-related medical conditions that could qualify as a disability (e.g., anemia, pregnancy-related sciatica, gestational diabetes orswelling due to limited circulation and depression). Therefore, if an employee qualifies under the ADA either because their pregnancy-related condition constitutes a disability, the employee has a history of such a condition or the employee is regarded as having such a condition, the employee could be protected under both the ADA and the PDA.

Controversial Portions of the Guidance

Pregnancy Is Treated More Favorably Than Other Conditions

The Guidance describes two circumstances in which pregnant employees are treated more favorably that other employees, regardless of whether they are male or female. The first is where the employer has a policy limiting eligibility for a leave of absence or other benefit to employees who have been employed for a certain period of time. For example, assume an employer has a policy not granting sick leave or a personal leave of absence until an employee has been employed six or twelve months. This would affect men and women equally. However, the Guidance says that such a policy would have a disparate impact on pregnant women, and therefore, it violates the PDA.

The Guidance also provides that reserving light duty jobs for employees with work-related injuries violates the PDA because pregnant employees could have the same limitations on their ability to work as those with a work-related injury, but would not be eligible for light duty. The problem with the EEOC's analysis is that men and women are treated exactly the same under the policy. If a woman is injured at work, she is eligible for light duty. Conversely, if a man suffers a non-work related injury, he is not eligible for light duty. As the Fourth Circuit pointed out in Young v. UPS, the position advocated in the Guidance results in pregnant employees being treated more favorably than other male and female employees.

Contraception Coverage

Given that the Guidance was issued so soon after the Supreme Court's decision in Hobby Lobby, and it took no position on the holding in that case, it appears that EEOC is going to be looking at ways to limit the scope of that decision, without saying so officially.

Recommendations for Employers

  1. At a minimum, make sure that employees who are pregnant and are not experiencing any complications or problems with their pregnancy, are treated like any other employee with a medical condition.
  2. If an employee has a pregnancy related physical or mental impairment that limits her in some way, determine whether the employee is entitled to an accommodation under the ADAAA or comparable state law.
  3. Comply with requirements, if any, under the FMLA and comparable state or local laws (e.g., laws requiring employers to provide paid or unpaid leave to pregnant employees).
  4. Review adverse employment decisions affecting pregnant employees (and formerly pregnant employees) before they are finalized to ensure that those employees are not being treated less favorably than other employees.
  5. Do not assume what a pregnant employee can or cannot do. Let the employee come to you when she feels the need for some accommodation.
  6. At least until Young v. UPS is decided, consider making exceptions to policies that limit benefits to pregnant employees (e.g., reserving light duty for work-related conditions and prohibiting short-term employees from taking leaves of absence or sick leave).