The U.S. Equal Opportunity Employment Commission issued a guidance detailing how employers should deal with pregnancy in their workforce, but legal pending court cases are likely to reshape it in the near future.
Two of the five EEOC commissioners dissented, pointing out that the guidance fails to take into account the Supreme Court’s decision overturning employer contraception mandates under Obamacare, and several other cases the high court is considering that will impact the guidance.
Also controversial is the guidance’s expansion of the Americans With Disabilities Act to cover pregnancy and require reasonable accommodation by employers in the absence of legislation, and what is seen as an inadequate effort to obtain public comments before it was adopted.
“Pregnancy is not a justification for excluding women from jobs that they are qualified to perform, and it cannot be a basis for denying employment or treating women less favorably than co-workers similar in their ability or inability to work,” said EEOC Chair Jacqueline A. Berrien.
“Our investigations have revealed the persistence of overt pregnancy discrimination, as well as the emergence of more subtle discriminatory practices,” She added.
Although EEOC is ostensibly an independent agency, President Obama last month called for changes in the law to protect pregnant workers, and his top aide Valerie Jarrett wrote a column in support of the EEOC guidance after it was issued.
EEOC said that an employer may not discriminate against an employee on the basis of pregnancy, childbirth or related medical conditions; and that women affected by pregnancy, childbirth or related medical conditions must be treated the same as other employees who are similar in their ability to work.
EEOC’s new guidance reviews:
- The commission’s view that Pregnancy Discrimination Act covers not only current pregnancy, but discrimination based on past pregnancy and a woman’s potential to become pregnant.
- When lactation is a covered pregnancy-related medical condition.
- The circumstances under which employers may need to provide light duty for pregnant workers and issues related to leave for pregnancy and for medical conditions related to pregnancy.
- The PDA’s prohibition that bans employers from requiring pregnant workers to take leave when they are capable of continuing to do their jobs.
- That parental leave (distinct from medical leave associated with childbearing or recovering from childbirth) must be provided to similarly-situated men and women on the same terms.
- When employers need to provide reasonable accommodations for workers with pregnancy-related impairments under the ADA. EEOC defines in some detail the kinds of accommodations that it says employers need to make, providing examples.
- Best practices are outlined to help employers avoid practicing unlawful discrimination.
- One of two dissenting commissioners Victoria Lipnic said EEOC should have waited until the Supreme Court decides two cases dealing with how federal agencies can develop rules and policy statements.
Another case involving a UPS employee pending before the high court deals with whether and to what extent an employer must provide pregnant employees with work accommodations, including light duty, under the PDA, Lipnic pointed out.
“The credibility of the commission is done no favor by issuing any guidance on these points while these critical questions are pending,” she said.
In addition, Lipnic said the guidance’s discussion of an employer’s legal obligations regarding contraception has been overtaken by the Supreme Court’s recent Hobby Lobby decision limiting the government’s ability to require employers to provide birth control under Obamacare.
The guidance takes the novel position that under the language of the PDA, a pregnant worker is entitled to reasonable accommodation under the ADA. “No federal Court of Appeals has adopted this position; indeed, those which have addressed the question have rejected it,” Lipnic said.
What Employers Need to Do
Attorney Zachary Busey of the firm of Baker Donelson Bearman Caldwell & Berkowitz, said “pregnancy discrimination is glowing bright on the EEOC’s radar. As it did after it issued updated guidance on criminal background checks, the EEOC’s next move will be to increase the number of pregnancy-related lawsuits (or enforcement actions) that it files against employers.”
Employers also can expect increased EEOC scrutiny in regard to granting leave, he warned. “How the courts will respond to the guidelines remains to be seen. For now, employers need to be cautious in how they approach any pregnancy-related issue in the workplace.”
The guidance, including examples of how employers should respond, can be found at:www.eeoc.gov/laws/guidance/pregnancy_guidance.cfm