EEOC Issues Enforcement Guidance on Pregnancy Discrimination Act

Yesterday, the EEOC issued new Enforcement Guidance on the Pregnancy Discrimination Act (“PDA”). The new guidance is 60 pages long and attempts to summarize the changes in the law that have taken place in the 30 years since the PDA was enacted. One of the major issues that the Guidance addresses is similar to an issue that will be before the Supreme Court in its next term. The Court has agreed to hear a case, Young v. UPS,that arises out of an employer’s decisions regarding a pregnant employee who was unable to perform the essential functions of her position. Peggy Young’s doctor imposed lifting restrictions during herpregnancy, and UPS said that it couldn’t accommodate those restrictions because it reserved light duty positions for employees who were injured on the job. Young was forced to take unpaid leave from her job and lost her health insurance, but returned to work at UPS after her baby was born. Her suit against UPS was dismissed by the Fourth Circuit Court of Appeals on the grounds that a pregnant worker with a temporary lifting restriction isn’t “similar in her ‘ability or inability to work'” to other types of employees for whom UPS willingly provided light duty, including employees with ADA disabilities, those who had been injured on the job, or drivers who had lost their DOT certification.

Just two weeks ago, the Supreme Court agreed to hear arguments on this case during its 2014-2015 term. The specific question before the Court is whether and in what circumstances an employer that provides work accommodations to non-pregnant employees with work limitations must provide work accommodations to pregnant employees who are “similar in their ability or inability to work” to other employees with similar work restrictions. UPS’ argument is that its policy is “pregnancy blind” and that it is not discriminatory.

The EEOC’s new Guidance appears to try to answer this question for the Court. The U.S. Solicitor General had asked the Court not to hear Young’s case until after the EEOC guidance was issued, but the Court decided to go forward anyway. Of course, now that the EEOC guidance has been issued, the Court could rescind its decision. That’s because the new enforcement guidance specifically covers the issue pending before the Court: whether a pregnant employee is entitled to light duty if her employer would grant a light duty assignment to other workers who are subject to the same work restrictions. The new Enforcement Guidance is available at http://www.eeoc.gov/laws/guidance/pregnancy_guidance.cfm

Among the more significant aspects of the new Guidance is the statement that “a pregnant worker with a work restriction who challenges a denial of light duty should be able to establish a prima facie case of discrimination . . . by identifying any other employee who is similar in his or her ability or inability to work and who was treated more favorably, including employees injured on the job and/or covered by the ADA.” The Commission specifically rejected the idea that “the PDA does not require an employer to provide light duty for a pregnant worker if the employer has a policy or practice limiting light duty to workers injured on the job and/or to employees with disabilities under the ADA.” In addition, the new Guidance states that a policy that restricts sick leave might have a disparate impact on pregnant women. The Guidance includes examples where a 10-day ceiling on sick leave and a policy denying sick leave during the first year of employment have been found to disparately impact pregnant women.

Employers whose light duty policies are limited to certain individuals, such as those with work-related injuries, should be careful when determining whether they will make a light duty position available to a pregnant worker with work restrictions. Skoler Abbott will be scheduling a breakfast briefing on this important topic in the near future. If you have any questions about the new enforcement guidance, please contact any one of the labor and employment attorneys at Skoler, Abbott & Presser, P.C.

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