Our team of labor and employment attorneys has reviewed and summarized the EEOC’s new guidance from every angle. Of course, in this blog, I primarily focus on the guidance’s implication as to the ADA/ ADAA. But for completeness, here are our key takeaways from the guidance, including important points not directly relating to the ADA:
#1 Employers Must Accommodate Pregnant Employees With “Disabilities” Under the ADA
Prior to enactment of the ADAAA, many courts and employers took the view that pregnancy and medical conditions related to pregnancy were not “impairments” within the meaning of the ADA and therefore could not qualify as “disabilities.” The law remains that pregnancy itself is not an impairment within the meaning of the ADA and thus is never on its own a disability.
However, many women suffer from impairments related to their pregnancy which will qualify as a disability under the ADA/ADAAA. Some examples of pregnancy-related impairments qualifying as “disabilities” include:
- Impairments of the reproductive system making a pregnancy more difficult
- Disorders of the uterus and cervix, e.g., cervical insufficiency requiring bed rest
- Pregnancy-related anemia (affecting normal cell growth)
- Pregnancy-related sciatica (affecting musculoskeletal function)
- Pregnancy-related carpel tunnel syndrome (affecting neurological function)
- Gestational diabetes (affecting endocrine function)
- Pelvic Inflammation
- Symphysis pubis dysfunction
- Abnormal heart rhythms
The EEOC identified additional pregnancy-related impairments which they believe would qualify as disabilities under the ADA. These impairments previously would have been considered as a part of a normal, run-of-the-mill pregnancy and would not have reached the level of a “disability” because they would not have substantially limited a major life activity. Therefore, according to the EEOC’s new guidance, the following pregnancy-related impairments might also constitute “disabilities,” fitting within the EEOC’s expansive view of what constitutes as a “disability” under the ADAAA:
- Nausea causing dehydration
- Swelling of the legs
- “High Risk” pregnancies without an identified impairment
- Back pain
- Complications requiring bed rest
- Cesarean section
- Aftereffects of a delivery
Like other pronouncements by the EEOC on accommodating disabled employees, the EEOC instructs employers they should not engage in “exhaustive analysis” of whether an impairment is a covered disability and instead construe the definition of “disability” broadly—fitting with EEOC’s advice to skip the “disability” analysis entirely and instead focus exclusively on providing reasonable accommodations.
#2 Non-Disabled Pregnant Employees Also Must Receive Reasonable Accommodation
The EEOC’s guidance dictates employees who are not “disabled” under the ADA/ ADAAA definition of “disability” are nonetheless eligible to receive the same reasonable accommodations as “disabled” employees. In this way, the EEOC is applying the “reasonable accommodation” and “undue hardship” standards on non-disabled employees, thus expanding and extending the reach of the ADA/ ADAAA to non-disabled employees. The EEOC explains: “[I]f a pregnant worker requests a change that the employer is providing as a reasonable accommodation to a coworker with a disability, the employer may evaluate the pregnant employee’s request in light of whether the change would constitute an ‘undue hardship,’ since this would amount to treating the pregnant employee the same as an employee with a disability whose accommodation request would also be subject to the defense of undue hardship.”
Therefore, employers are expected to offer benefits to pregnant workers on the same terms as they offer benefits to other workers, similar in their ability or inability to work. In plain language—the EEOC expects employers will accommodate pregnant employees with the same accommodations offered to employees with disabilities under the ADA/ ADAAA and/or who are injured on the job. A pregnant employee is to receive the same accommodation as a disabled employee, despite the fact the pregnant employee may not be in fact “disabled” under the ADA.
#3 The PDA Protects Pregnant Employees From Negative Stereotypes
The PDA prohibits adverse treatment of pregnant women arising from stereotypes or assumptions about their job capabilities or commitment to the job. For instance, an employer might refuse to hire a pregnant woman based on an assumption that she will have attendance problems or leave her job after the child is born; this is an adverse decision based on a stereotype or assumption and thus violates Title VII.
Based on this reasoning, the EEOC likewise concludes an employer cannot require an employee to take a leave of absence even out of genuine concern for the fetus. While the EEOC acknowledges that is some “rare” circumstances an employer may claim excluding pregnant or fertile women from a certain job is lawful because non-pregnancy is a bona fide occupational qualification (BFOQ), the EEOC warns that BFOQ defense is an “extremely narrow exception . . . .” The defense cannot be based on “fears of danger to the employee or her fetus, fears of potential tort liability, assumptions and stereotypes about the employment characteristics of pregnant women such as their turnover rate, or customer preference.”
#4 The PDA Protects Past and Future Pregnancies
An employee does not have to be currently pregnant to have a viable claim under the PDA. For instance, an employee may claim she was subjected to discrimination based on past pregnancy, childbirth, or related medical conditions. The EEOC’s position is a causal connection between a claimant’s past pregnancy and the challenged action will likely be found when there is close timing between the two, e.g., an employee is discharged during her pregnancy-related medical leave. The EEOC maintains even without a close timing, an employee can maintain a claim of pregnancy discrimination; a lengthy time difference between a pregnancy and the challenged action will not foreclose a finding of pregnancy discrimination when there is evidence that pregnancy, childbirth, or related medical conditions motivated the action.
Likewise, women cannot be discriminated against with regard to job opportunities and benefits because they might become pregnant. Title VII prohibits an employer from discriminating against an employee because of her intention to become pregnant, infertility treatments, and use of contraceptives.
#5 The PDA Protects Abortion
Title VII protects women from adverse employment actions for having an abortion or contemplating having an abortion. Title VII would similarly prohibit adverse employment actions against an employee based on her decision not to have an abortion.
#6 EEOC’s Health Insurance Mandates
The EEOC’s position is an employer would violate Title VII by providing health insurance that excludes coverage of prescription contraceptives but otherwise provides comprehensive coverage. To comply with Title VII, an employer’s health insurance plan must cover prescription contraceptives on the same basis as prescription drugs, devices, and services that are used to prevent the occurrence of medical conditions other than pregnancy. For example, if an employer’s health insurance plan covers preventative care for medical conditions such as vaccinations, physical examinations, prescription drugs preventing high blood pressure or to lower cholesterol levels, and/or preventative dental care, then prescription contraceptives must also be covered.
The EEOC issued a list of suggested “best practices” for employers, including:
- Developing a written policy addressing the PDA and ADA
- Training managers regarding the rights and responsibilities under the PDA
- Drafting written job descriptions containing specific, job-related qualification standards, duties, functions, and competencies to minimize the potential for gender stereotyping and discrimination on the basis of pregnancy, child birth, and related medical conditions
- Revising workplace policies limiting employee flexibility, such as fixed hours of work and mandatory overtime, to ensure they are necessary for business operation
- Reviewing hiring procedures to give the same weight to cumulative relative experience that would be given to workers with uninterrupted service
- Ensuring employees who are on leaves of absence due to pregnancy, childbirth, or related medical conditions have access to training, if desired, while out of the workplace
- Monitoring compensation practices and performance appraisal systems for patterns of potential discrimination based on pregnancy, and ensuring compensation and performance appraisals are based on employees’ actual job performance and not on stereotypes
- Reviewing light duty policies to ensure any light duty policy can be accessed by pregnant employees
Questions about the new guidance, its requirements, implications or enforceability? Please do not hesitate to contact us.