Enforcement Guidance on Pregnancy Discrimination and Related Issues
Peggy MastroianniLegal CounselEEOCJuly 2014
Pregnancy Issues and the Strategic Enforcement Plan
Oneof the six national priorities identified in Strategic Enforcement Plan (SEP) is litigating “emerging or developingissues”One such “emerging or developing issue” is “accommodatingpregnancy-related limitations under the Americans with Disabilities Act Amendments Act (ADAAA) and the Pregnancy DiscriminationAct”(SEP, Part III.B.3)
EEOC History on Issues Relating to Pregnancy, Disability, and Caregiver Discrimination
Guidelines on Discrimination Because of Sex (1979): http://www.gpo.gov/fdsys/pkg/CFR-2011-title29-vol4/xml/CFR-2011-title29-vol4-part1604.xmlFact Sheet: The Family and Medical Leave Act, the Americans with Disabilities Act, and Title VII of the Civil Rights Act of 1964 (1995):http://www.eeoc.gov/policy/docs/fmlaada.htmlEnforcement Guidance: Unlawful Disparate Treatment of Workers With Caregiving Responsibilities (2007):http://www.eeoc.gov/policy/docs/caregiving.htmlRegulations to implement the ADAAA (2011):29 C.F.R. § 1630Commission Meeting on Unlawful Discrimination Against Pregnant Workers and Workers With Caregiving Responsibilities (2012):http://www.eeoc.gov/eeoc/meetings/2-15-12/index.cfm
More Pregnant Women in the Workforce
Today, women comprise half of the workforce and increasingly continue to work while pregnant, often through later stages of pregnancy.1961-65: 44% of first-time mothers worked during pregnancy, and 13% of them stopped work during their first trimester.Compare to 2006-08: 66% of first-time mothers worked during pregnancy, and only 6% of them stopped work during their first trimester.1961-65: 35% of first-time mothers who worked during pregnancy worked into their final month.Compare to 2006-08: 82%of first-time mothers who worked during pregnancy worked into their final month.1970: Mean age at first birth was 21.4.Compare to 2007: Mean age at first birth was 25.SeeNational Women’s Law Center,Fact Sheet: The Pregnant Workers Fairness Act: Making Room for Pregnancy on the Job(June 2013),available athttp://www.nwlc.org/sites/default/files/pdfs/pregnantworkersfairnessfactsheet_w_bill_number.pdf; U.S. Census Bureau,Maternity Leave and Employment Patterns of First-Time Mothers 1961-2008, 4, 6 (Oct. 2011),available athttp://www.census.gov/prod/2011pubs/p70-128.pdf.
EEOC’s Pregnancy Discrimination Guidance
Enforcement Guidance: Pregnancy Discrimination And Related Issueshttp://www.eeoc.gov/laws/guidance/pregnancy_guidance.cfmQuestions and Answers about the EEOC's Enforcement Guidance on Pregnancy Discrimination and Related Issueshttp://www.eeoc.gov/laws/guidance/pregnancy_qa.cfmFact Sheet for Small Businesses: Pregnancy Discriminationhttp://www.eeoc.gov/eeoc/publications/pregnancy_factsheet.cfm
I. The Pregnancy Discrimination Act (PDA)
First clause:“The terms ‘because of sex’ or ‘on the basis of sex’ include, but are not limited to, because of or on the basis ofpregnancy, childbirth, or related medical conditions”; and42 U.S.C. § 2000e (k) (emphasis added).
PDA: “Adverse Employment Actions”
Examples:No hireTerminationDemotionFailure to promoteFailure to transferDoe v. DOJ, U.S. Marshals Serv., EEOC Appeal No. 0720090006HarassmentHarris v. Soc. Sec. Admin., EEOC Appeal No. 0120121157
PDA: Extent of Coverage - “Pregnancy, Childbirth, and Related Medical Conditions”
“The PDA gives a woman the right . . . to be financially and legally protected before, during, and after her pregnancy.” Leg. History of the PDACurrent PregnancyPast PregnancyEnforcement Guidance: Unlawful Disparate Treatment of Workers withCaregivingResponsibilitieshttp://www.eeoc.gov/policy/docs/caregiving.htmlPotential or Intended PregnancyUAW v. Johnson Controls, 499 U.S. 187 (1991)
PDA: “Related Medical Conditions”
Examples of “related medical conditions”:Complications requiring bed restGestational diabetesAfter-effects of C-sectionLactation –EEOC v. Houston Funding, 2013 WL 2360114 (5thCir. 2013)
The PDA’s Second Clause
“[W]omen affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes, including receipt of benefits under fringe benefit programs, as other persons not so affected butsimilar in their ability or inability to work, and nothing in section 703(h) of this title shall be interpreted to permit otherwise. . . .”Examples of such benefits: “light duty,” leave, health insurance
PDA: Light Duty
Employer must provide light duty for a pregnant worker if it provides light duty for employees who are not pregnant, but who are similar in their ability or inability to work.Direct evidenceof discriminatory denial of light duty to a pregnant worker:Example 9– Supervisor denies pregnant worker’s request for light duty, telling her that having a pregnant worker is too much of a liability for the company.
PDA: Light Duty, cont’d
Comparator Evidence:Example 10 - Employer Violates PDA by Not Providing Equal Access to Light DutyEmployer provides light duty jobs (subject to availability) for any employee who cannot perform a job duty due to injury, illness, or ADA disability.However, employer denies light duty request from pregnant worker with a 20 lb lifting restriction on the ground that pregnancy does not constitute an injury, illness, or disability
PDA: Light Duty, cont’d
Comparator Evidence:Example 11 – Employer Provides Equal Access to Light DutyPregnant nursing assistant at long term care facility denied light duty and discharged because she couldn’t perform all of her job duties.No PDA violation because employer has only 5 light duty (administrative) jobs which are available to any employee unable to perform a job function. All 5 of these jobs were filled when she made her request.The PDA requires equal access, but not preferential treatment.
PDA: Light Duty, cont’d
Proof of Discrimination ThroughMcDonnell DouglasBurden-Shifting Framework:Prima Facie Case – pregnant worker shows that a similarly situated non-pregnant worker (e.g., a worker with an on-the-job injury or a worker with a disability) has been given light duty.Legitimate Nondiscriminatory Reason – There are a limited number of light duty jobs and they are all filled.Pretext – The cap on light duty jobs has been waived in the past for non-pregnant workers.
Pregnancy-Related Medical LeaveNo forced leaveNo increased restrictions on pregnancy-related medical leaveParental LeaveMust be provided to mothers and fathers on the same terms.
PDA: Health Insurance
Employers who provide health insurance must include coverage of pregnancy, childbirth, and related medical conditionsHealth insurance that excludes coverage of prescription contraceptives may violate the PDAhttp://www.eeoc.gov/policy/docs/decision-contraception.html
II. Pregnancy and the Rehabilitation Act
EEOC regulations still make a distinction between “normal” pregnancies and those with complications.SeeEEOC’s Questions and Answers on the Final Rule Implementing the Amended ADA, at Question 23, available athttp://www.eeoc.gov/laws/regulations/ada_qa_final_rule.cfmGenerally, under the ADAAA/Rehab Act expanded rules of construction and definitions, many more pregnancy-related conditions now may qualify as “physical impairments” supporting “actual disability” and “record of such disability” claims.For example, someone with an impairment resulting in a 20-pound lifting restriction that lasts or is expected to last for several months is substantially limited in the major life activity of lifting.
Pregnancy and the Rehab Act: New Rules of Construction
Major life activities also include bodily functions, including but not limited to, functions of the cardiovascular, respiratory, circulatory, endocrine, and reproductive and musculoskeletal functions.“Substantially limits” significantly expanded --29 C.F.R. §1630.2(j)(1) (2011) (“An impairment need not prevent, or significantly or severely restrict, the individual from performing a major life activity in order to be considered substantially limiting.”)Exception for transitory conditions no longer applies for “actual disability” – 42 U.S.C. §12102 (2013)
Rehab Act: Pregnancy-Related Impairments that May Be Substantially Limiting
Examples:Pelvic inflammation – may substantially limit walkingPregnancy-related carpal tunnel – may substantially limit liftingDisorders of uterus or cervix – may substantially limit reproductive functionPregnancy-related sciatica – may substantially limit musculoskeletal functionGestational diabetes – may substantially limit endocrine functionPreeclampsia – may substantially limit cardiovascular or circulatory functions
Pregnancy-Related ImpairmentsThat Are Substantially Limiting
Mayorga v. Alorica, Inc.,2012 WL 3043021 (S.D. Fla. July 25, 2012)Plaintiff had a high-risk pregnancy where baby was in breech position throughout, resulting in, inter alia, premature contractions; increased heart rate; severe morning sickness, back pain, and lower abdominal pain; and three emergency room visits.Held: While healthy pregnancies are not covered under ADA, pregnancy-related complications may be disabilities if they are severe or long enough in duration. Motion to dismiss denied and plaintiff directed to file amended complaint alleging specific major life activities which were substantially limited.
Common Accommodations forPregnancy-Related Limitations
Modification of job duties, such as provision of “light duty” or redistribution of marginal functionsModification of work hoursRelocation to a different work areaMore frequent breaksModification of policies – permission to use a stool while on duty or to drink from a water bottleAdditional leave
Other Avenues to Accommodation
Some state laws require some degree of accommodation of pregnancy, including:- Alaska - Illinois - Maryland- California - Minnesota - New Jersey- Connecticut - Texas - West Virginia- Hawaii - LouisianaPregnant Workers Fairness Act, S. 942, 113th Cong.(2013), available at http://www.govtrack.us/congress/bills/113/s942
Protect applicants and employees against retaliation.Make hiring, promotion, and other employment decisions without regard to stereotypes about pregnant workers.Review light duty policies for compliance with the PDA.Ensure that anyone designated to handle reasonable accommodation requests is aware of new rules of construction under the Rehab Act.