Navigating the Pregnancy Discrimination Act and the EEOC’s Enforcement Guidance
By: Sally Griffith Cimini, Esq.
Pennsylvania law prohibits discrimination against pregnant employees in employment decisions on the basis of their pregnancy. Both federal and Pennsylvania law prohibit employers from discriminating on the basis of pregnancy or a related medical condition in hiring, firing, pay, promotions and other terms and conditions of employment. These restrictions are outlined in the Pennsylvania Human Relations Act (“PHRA”) and Title VII of the Civil Rights Act (“Title VII”), as amended by the Pregnancy Discrimination Act of 1978 (“PDA”).
A more complicated question is to what degree an employer is required to accommodate a pregnant employee. The Americans with Disabilities Act (“ADA”) contains an accommodations provision that requires reasonable accommodations for persons with disabilities, including short-term accommodations for temporary disabilities. However, Title VII and the PHRA do not contain the same requirements, and pregnancy alone is not generally covered under the ADA, except for those disabilities that result from the pregnancy.
On July 1, 2014, the U.S. Supreme Court granted review of Young v. UPS, a case that addresses this very question. In Young, a Fourth Circuit panel affirmed that neither Title VII nor the ADA require an employer to make reasonable accommodations for a pregnant employee. This case involves an employer’s refusal to accommodate a pregnant employee’s lifting limitation that prevented her from lifting more than twenty pounds. Determining that the employee was ineligible for light duty under its policy, which provided light duty as an accommodation only to certain employees, including those who are disabled within the meaning of the ADA, the employer denied her return-to-work request. Young sued, alleging discrimination under the ADA and the PDA. The issue presented to the Supreme Court is whether, and in what circumstances, the PDA requires an employer to accommodate the work restrictions of pregnant employees when it does so for some non-pregnant employees with temporary impairments.
On July 14, 2014, the U.S. Equal Employment Opportunity Commission (“EEOC”), however, issued updated enforcement guidance on the PDA. This EEOC guidance initially explains the fundamental principles of the PDA: 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 persons similar in their ability or inability to work.
Moreover, the EEOC’s guidance specifically states that if an employer offers light duty to employees who suffer work-related injuries or illnesses, the employer MUST offer light duty on the same terms to pregnant employees. The guidance also states that pregnant employees are entitled to the same reasonable accommodations that are offered to employees with disabilities.
The guidance also discusses the EEOC’s position on a number of issues related to the PDA:
- The potential application of the ADA’s definition of “disability” to workers with impairments related to pregnancy;
- The fact that the PDA covers not only current pregnancy, but discrimination based on past pregnancy and a woman’s potential to become pregnant;
- Lactation as 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’s 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 have to provide reasonable accommodations for workers with pregnancy-related impairments under the ADA and the types of accommodations that may be necessary; and,
- Best practices for employers to avoid unlawful discrimination against pregnant workers.
It is important to note that the EEOC did not make a final draft of the PDA guidance available for public review and comment prior to voting and implementing it. Moreover, the long-term applicability of the EEOC’s PDA guidance will depend on the U.S. Supreme Court’s decision in Young v. UPS next term.
While it is unclear how the U.S. Supreme Court will decide Young v. UPS and the effect that decision will have on the EEOC’s guidance, employers should immediately review their accommodation policies and practices to minimize exposure to pregnancy discrimination claims due to the fact that the EEOC’s guidance will control until a decision in Young v. UPS, is reached.
Leech Tishman’s Employment Practice Group is available to discuss with you the PDA, the EEOC’s new guidance, and best practices to avoid pregnancy discrimination claims and has experience with other federal, state, and local discrimination and accommodation issues as well as all employment issues affecting employers.
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