I hate to admit it, but there’s a little part of me that enjoys learning about internal conflict and disagreement at a regulatory agency like the Equal Employment Opportunity Commission (“EEOC”). But, it’s not about the inevitable gossip or a desire to see even more dysfunction in the government. It’s about ensuring the people in charge are engaged and not just mindlessly rubber stamping decisions on important issues – or at least standing up and making some noise when their peers are taking questionable actions. The latest case in point, two EEOC Commissioners have issued harsh dissents on the Enforcement Guidance regarding the Pregnancy Discrimination Act (“PDA”) released by the EEOC on July 14, 2014.
The PDA was enacted in 1978, with the intention of making a clear statement that discrimination based on pregnancy, childbirth, or related medical conditions is a form of sex discrimination prohibited by Title VII of the Civil Rights Act of 1964 (“Title VII”).
The new EEOC Guidance, the first update in 30 years, sets out the fundamental PDA requirements:
- An employer may not discriminate against an employee on the basis of pregnancy, childbirth, or related medical conditions; and
- Women affected by pregnancy, childbirth, or related medical conditions must be treated the same as other persons not so affected but similar in their ability or inability to work.
The Guidance then explains how, in the view of the EEOC, the definition of “disability” under the American’s with Disabilities Act, as amended (“ADAAA”) might apply to workers with impairments related to pregnancy. This is key to the following list of points, and the EEOC’s view of each:
- The PDA covers not only current pregnancy, but discrimination based on past pregnancy and a woman’s potential to become pregnant;
- Lactation is a covered pregnancy-related medical condition;
- The circumstances under which employers may have to provide light duty for pregnant workers;
- Issues related to leave for pregnancy and for medical conditions related to pregnancy;
- The PDA prohibition against requiring pregnant workers who are able to do their jobs to take leave;
- The requirement that parental leave (which is distinct from medical leave associated with childbearing or recovering from childbirth) be provided to similarly situated men and women on the same terms;
- When employers may be required to provide reasonable accommodations for workers with pregnancy-related impairments under the [ADAAA], and the types of accommodations that may be necessary; and
- Best practices for employers to avoid unlawful discrimination against pregnant workers.
Highlights of the Issues
So what about the controversy? (I know some of you are thinking, “come on Frank, let’s get to the good stuff!”) Ok, here it is…
Two of the five EEOC Commissioners, Constance S. Barker and Victoria A. Lipnic, filed statements expressing their dissent from the Commission’s adoption of the new PDA Guidance. Both Commissioners expressed concerns that the Guidance overstepped existing legal precedents and dramatically departed from existing law, and the previously longstanding EEOC Guidance on the PDA. They also criticized the Agency for failing to follow the practice of providing a public notice-and-comment period before it was presented to the Commissioners for a vote, indicating a lack of transparency.
Commissioners Barker and Lipnic also question the timing of the Guidance because the U.S. Supreme Court recently agreed to hear a case from the US Court of Appeals for the Fourth Circuit (Young v. United Parcel Service, Inc.), in which the Court is likely to address several of the points contained in the Guidance, including whether a routine pregnancy is a disability under the ADAAA, which would then require a reasonable accommodation. Commissioner Lipnic indicated that the eventual Supreme Court decision in the Young case may make the new Guidance moot. However, in the absence of such a decision, this EEOC Guidance clearly and dramatically expands the rights of employees under the PDA.
In the Employer Compliance Points section of my next post, I’ll discuss several important items employers should get from the Guidance, and the What’s Next section will include a few final thoughts.
Please feel free to contact me at firstname.lastname@example.org, or 585-672-4142, x15 with questions or for more information.
Disclaimer: This content is for informational purposes only, does not constitute a legal opinion, and is not legal advice. The facts of each situation should be considered and analyzed individually. Therefore, you should always consult with competent employment counsel regarding any issues discussed here.
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