An In-Depth Look at the EEOC's New Enforcement Guidance on Pregnancy Discrimination

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This past Monday, July 14, a divided Equal Employment Opportunity Commission issued a new Enforcement Guidance on Pregnancy Discrimination and Related Issues, which supersedes the 1983 chapter on pregnancy discrimination in its Compliance Manual. The EEOC also issued a Q&A and a Fact Sheet.

The following is a discussion of the most significant provisions in the new Enforcement Guidance.

What's a "pregnancy"? The EEOC's definition of "pregnancy and pregnancy-related conditions" is very broad. It encompasses every aspect of the reproductive process, including conception (or decision not to conceive), pregnancy or termination of pregnancy, childbirth, and post-birth including lactation.

Impact of the Americans with Disabilities Act. There was no ADA in 1983. That law wasn't enacted until 1990, and it didn't take effect until 1992 (1994 for small employers). Then the ADA Amendments Act, which took effect in 2009, drastically broadened the definition of "disability."

The old and new versions of the ADA specifically exclude pregnancy as a disability. But even if they had not, the "old" ADA clearly did not apply to a condition as temporary as a pregnancy, or to a medical condition that began during pregnancy and ended when the baby was born. Under the ADAAA, though, short-term conditions can qualify as disabilities.

The EEOC correctly notes in this new guidance that, even though the pregnancy itself isn't an ADA-covered disability, many related medical conditions may very well be. For example, preeclampsia (high blood pressure associated with pregnancy, which usually goes away as soon as the baby is born) or gestational diabetes (diabetes associated with pregnancy, which usually goes away as soon as the baby is born), may qualify as "disabilities" under the ADAAA. If so, then employees with these pregnancy-related medical conditions will be entitled to reasonable accommodations.

That part of the Enforcement Guidance should not be too controversial, but the EEOC also says that employers must consider reasonable accommodations to women with normal, "uncomplicated" pregnancies if the employers offer reasonable accommodations to employees with disabilities, which of course they are required to do under the ADA. In effect, the EEOC has created a reasonable accommodation requirement for normal pregnancy. The rationale is that the Pregnancy Discrimination Act requires that pregnant employees be treated the same as "non-pregnant employees who are similar in their ability or inability to work."

"It's amazing to me what supervisors and employees don't know about the [pregnancy discrimination] law. Egad." EEOC Commissioner Chai Feldblum, quoted in Law360, April 2014.

Light duty. "Light duty," as opposed to "reasonable accommodation," is often "make-work" that is designed for employees with work-related injuries or illnesses. The purpose of light duty is usually to facilitate recovery by keeping the employee as active as possible, and also to keep workers' compensation premiums down. There is also an equitable rationale: because the employee got hurt doing the employer's work, in justice the employer ought to do what it can for the employee.

The EEOC's new guidance says that if an employer offers light duty for work-related conditions, it must offer light duty to pregnant employees who need it. The EEOC's position -- which has not had much support in the courts -- is that employees with on-the-job injuries and employees with pregnancy-related impairments are "similar in their ability or inability to work." A "before and after" example may help to illustrate:

BEFORE: Joe hurt his back on the job. To facilitate his recovery and keep workers' compensation premiums as low as possible, his employer lets him come to work every day and count pencils. Mary is pregnant and has a lifting restriction exactly like Joe's. The employer does not have to offer a pencil-counting job to Mary as long as it doesn't give such jobs to employees with other non-work-related restrictions.

AFTER: Joe and Mary have a similar impairment, and so they must be treated the same, regardless of the "source" of the impairment. In fact, it is unlawful for the employer to treat them differently based on the "source" of their impairment. Therefore, the employer must offer pencil-counting light-duty make-work to BOTH Joe and Mary, or deny it to both of them.

Perhaps the employer can eliminate "make-work" light duty? Perhaps not. The EEOC also says that if the failure to provide light duty has a disparate impact on pregnant women, then that may be unlawful. The same holds true for restrictive medical and sick leave policies. What the EEOC is really trying to do is make it legally impossible for employers to avoid providing reasonable accommodations and light duty for pregnancy and related conditions.

Interaction of the Pregnancy Discrimination Act and the Affordable Care Act. As we all know now, the Affordable Care Act requires employers to provide coverage for 20 FDA-approved contraceptive devices. Assuming that the employer does not qualify for the Hobby Lobby religious exception, the EEOC's position is that failure to provide contraceptive coverage is not only a violation of the ACA but also a violation of the PDA.

The same applies to failure to comply with the Nursing Mothers Act, which amended the Fair Labor Standards Act to require "lactation accommodation." Many courts have held that the Nursing Mothers Act does not provide a private right of action -- in other words, if the employer violates the law, the employee can go to the Department of Labor for redress, but she cannot sue her employer directly. Moreover, because the Nursing Mothers Act requires unpaid breaks for women to express milk, she has no monetary damages if the employer breaks the law.

By taking the position that violation of the Nursing Mothers Act also violates the Pregnancy Discrimination Act, the EEOC creates a new remedy for nursing mothers. If the EEOC's position prevails, then a woman who is denied lactation accommodation can presumably sue her employer (after filing an EEOC charge), and she can potentially recover compensatory and punitive damages, as well as attorneys' fees. The EEOC has already successfully taken the position that lactation is a "pregnancy-related condition." (After the U.S. Court of Appeals for the Fifth Circuit found that lactation was a pregnancy-related condition, the EEOC and the employer settled this case for $15,000.)

BEFORE: Susan's employer forces her to use the women's restroom to express breast milk, which violates the Nursing Mothers Act. Susan sues, and her lawsuit is dismissed on the ground that she has no private right of action for an NMA violation. She goes to the Department of Labor, which gets the employer to designate a conference room for this purpose.

AFTER: Instead of suing for violation of the NMA, Susan goes to the EEOC and files a pregnancy discrimination charge. The EEOC finds cause, and Susan sues the employer under the Pregnancy Discrimination Act, seeking $300,000 in compensatory and punitive damages, plus attorneys' fees. At court-ordered mediation, Susan gets a settlement of $25,000 plus a fee for her attorney, and the employer agrees to designate a conference room for nursing mothers to express milk. Susan goes away happy to have the $25,000 and a conference room instead of a bathroom, and her employer goes away relieved that it didn't have to pay $300,000.

Will this Enforcement Guidance stand?

Most courts have viewed the Pregnancy Discrimination Act as being a "non-discrimination" law, not a "reasonable accommodation" law. I think these courts are correct. In fact, many states and municipalities have enacted pregnancy "accommodation" laws precisely because the PDA has been believed not to require accommodation. (Pregnancy accommodation bills have been introduced in Congress, also.) On the other hand, since the EEOC issued its 1983 guidelines, Congress and state and local governments have enacted laws that require reasonable accommodation in many circumstances, so the EEOC has a plausible argument that "equal" treatment in the modern workplace may require reasonable accommodation. Put another way, the EEOC would argue that the PDA has stood still for 30 years while the rest of the workplace has marched on. Has reasonable accommodation become the new normal?

The pros and cons of this issue are set forth nicely in EEOC Commissioner Constance Barker's statement in opposition to the Enforcement Guidance and EEOC Commissioner Chai Feldblum's statement in support of it.

Was it legally proper, or prudent, for the EEOC to issue this Enforcement Guidance? Again, the Barker and Feldblum statements are well worth reading. Before making changes this sweeping in the traditional interpretation of the PDA, the EEOC arguably should have provided a formal notice and an opportunity for the affected community to comment. The Commission did hold a hearing in February 2012, which it left open for 15 days, but it is not clear whether that would be enough to satisfy a notice-and-comment obligation.*

*The Supreme Court agreed on June 30 to review a decision from the U.S. Court of Appeals for the District of Columbia Circuit, finding that when an agency (in this case, the U.S. Department of Labor) changed a longstanding "authoritative and definitive" interpretation of the law it was required to provide prior notice and an opportunity for comment. It isn't clear whether the ultimate outcome of this case will have an impact on the validity of the EEOC's new Enforcement Guidance.

In the EEOC's defense, though, it has provided signals that something like this was coming. In a blog post I wrote on September 5, 2012, about the EEOC's Strategic Enforcement Plan for 2012-16, I said,

The EEOC's strategy appears to be to impose a reasonable accommodation requirement through the back door by requiring employers to treat pregnant women the same way they treat employees with temporary medical conditions, which could mean providing light duty. I think (hope) most employers are already doing this.

Even if the Enforcement Guidance was validly issued, was it prudent for the EEOC to issue it, knowing that the Supreme Court will decide once and for all next term whether pregnancy accommodation is required under the PDA? I would say no. If the Supreme Court finds that the PDA does not require pregnancy accommodation, then the EEOC will have to scrap those portions of its Enforcement Guidance unless Congress legislatively overrules the Court by amending the PDA. Even if the Supreme Court finds that pregnancy accommodation is required, it's possible that nuances of the Court's decision will require revisions to the Enforcement Guidance.

On the other hand, the Enforcement Guidance may influence Congress, and state and local legislative bodies that are considering whether to adopt pregnancy accommodation laws, as well as employers who don't want to be EEOC "test cases." So, maybe the agency isn't being imprudent, after all?

If you have any questions about the EEOC's Enforcement Guidance, or about pregnancy discrimination and accommodation, please contact any member of our Litigation Practice Group, or the Constangy attorney of your choice.

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