The guidance pushes and expands the boundaries of the law in several important respects. For instance, the EEOC now requires employers to make the same reasonable accommodations available for non‑disabled pregnant employees as it does for disabled employees under the ADA/ ADAAA. Applying the “accommodations” and “undue burden” standards outside of the context of employees who are actually “disabled” under the ADA/ ADAAA is unprecedented and clearly marks an expansion of the law. Likewise, the EEOC dictates an employer must offer prescriptive contraceptive coverage if it offers comprehensive health insurance which includes coverage for preventative care for medical conditions such as vaccination and prescription drugs that prevent high blood pressure or lower cholesterol levels. The EEOC’s position is an abrogation and departure from an Eighth Circuit case holding otherwise. See Union Pac. R. R. Employment Practices Litig., 479 F.3d 936 (8th Cir. 2007). In a footnote, the EEOC simply states it “disagrees with the conclusion” of the Eighth Circuit case. The EEOC’s position on mandatory contraceptive coverage may also run afoul of the recent Supreme Court case, Burwell v. Hobby Lobby Stores, Inc., et.al, 134 S.Ct. 2751 (2014); this critical issue is only given brief mention in a footnote.
If there is any doubt of the controversy surrounding the new pregnancy guidance, just look to the Commission itself. The final vote on the guidance was 3-2 in favor. Commissioners Lipnic and Barker issued public statements disapproving of the EEOC guidance. In particular, Commissioner Lipnic questioned the timing of the guidance (right before the Supreme Court is set to rule on a PDA case, Young v. United Parcel Service, Inc., 707 F.3d 437 (4th Cir. 2013), cert. granted, 86 USLW 3602 (U.S. July 1, 2014)), and without first making the EEOC’s Guidance available for public comment.
ISSUE: Are all of the provisions of the guidance enforceable, especially the EEOC’s new mandates?
Consider the recent Supreme Court case of Vance v. Ball State, 133 S.Ct. 2434, 2449-50 (2013), wherein the Supreme Court rejected the EEOC’s “nebulous” definition of “supervisor” as outlined in its enforcement guidance. In Vance, the Court characterized the EEOC’s guidance as a “study in ambiguity.” The Court held it would not defer to the EEOC guidance because the guidance did not have the “power to persuade,” which “depend[s] upon the thoroughness evident in its consideration, the validity of its reasoning, [and] its consistency with earlier and later pronouncements.” Simply put, the EEOC did not find the EEOC Guidance persuasive and thus was not bound to it.
The EEOC reached the same conclusion in another employment case issued last year, University of Texas Southwestern Medical Center v. Nassar, 133 S.Ct. 2517 (2013). Again the Court rejected the EEOC’s enforcement guidance as to the causation standard to be applied to a Title VII retaliation case. The Court reasoned the guidance at issue lacked the “persuasive force” to be afforded deference under the standard set forth in Skidmore v. Swift & Co., 323 U.S. 134, 65 S.Ct. 161, 89 L.Ed. 124 (1944). The Court specifically found the guidance did not address the interplay between the specific statutes at issue and its reasoning was circular and unsupported.
The Takeaway: The controversial aspects of the EEOC’s guidance will likely be challenged in Court, and may not be afforded deference as indicated by the Supreme Court’s recent hostility toward the EEOC’s guidances.