July 29, 2014
On July 14, 2014, the U.S. Equal Employment Opportunity Commission (“EEOC”) issued updated Enforcement Guidance on Pregnancy Discrimination and Related Issues. The Pregnancy Discrimination Act (“PDA”), 42 U.S.C. § 2000e(k), was enacted in 1978 to make clear that discrimination based on pregnancy, childbirth, or related medical conditions is a form of sex discrimination prohibited by Title VII of the Civil Rights Act. The PDA prohibits discrimination related to current pregnancy, past pregnancy, and potential or intended pregnancy. The PDA requires that pregnant women be treated the same as non-pregnant persons who are similar in their ability or inability to work. This comprehensive update incorporates developments in the law during the past thirty years. The PDA applies to employers with fifteen or more employees.
One important issue addressed in the updated enforcement guidance is the relationship between the PDA and the Americans with Disabilities Act (“ADA”), as amended. Although pregnancy is not a disability under the ADA, some pregnant workers may have impairments related to their pregnancies that qualify as disabilities under the ADA. The ADA defines the term “disability” as an impairment that substantially limits one or more major life activities, a record of such impairment, or being regarded as having a disability. The cause of the impairment is not relevant in determining whether an impairment is a disability. Therefore, it is likely that many pregnancy-related impairments that impose work-related restrictions will be substantially limiting, even though they are only temporary in nature. For example, impairments such as pregnancy-related carpal tunnel syndrome, gestational diabetes, and preeclampsia are likely to be disabilities under the ADA.
The ADA also covers pregnant workers who are regarded as disabled and individuals who have a known association with an individual with a disability. An employer regards a pregnant worker as disabled if it takes an adverse action against her because of an actual or perceived pregnancy-related impairment, unless the employer can show the impairment is transitory and minor. An employer discriminates against an individual who has a known association with an individual with a disability if, for example, it refused to hire a parent of a newborn with a disability.
Because pregnancy-related impairments can be disabilities under the ADA, pregnant workers may be entitled to reasonable accommodations for such limitations. A reasonable accommodation is a change in the workplace or way things are ordinarily done that enables an individual with a disability to apply for a job, perform a job’s essential functions, or enjoy equal benefits and privileges of employment. An employer may only deny a reasonable accommodation if it would result in an undue hardship, meaning significant difficulty or expense. Some examples of reasonable accommodations that may be necessary for a pregnancy-related disability include: temporary reassignment to light duty, telework arrangement, or modified work schedule.
Whether pregnancy-related impairments are disabilities will continue to be a developing area of employment law in the months to follow. Next term, the United States Supreme Court will hear Young v. United Parcel Service, Inc., and address whether, and in what circumstances, the PDA requires an employer that provides work accommodations to non-pregnant employees with work limitations to provide work accommodations to pregnant employees who are “similar in their ability or inability to work.” 707 F.3d 437 (4th Cir. 2013), cert. granted, 81 U.S.L.W. 3602 (U.S. July 1, 2014) (No. 12-1226).
In this case, Young, a pregnant employee, supplied a doctor’s note which stated that she could not lift more than twenty pounds during her pregnancy. Based upon these restrictions, UPS determined that Young could not perform the essential functions of her position, as she could not lift packages for delivery. UPS further denied Young a light duty assignment because light duty assignments were only made available for employees with on-the-job injuries, ADA accommodations, or losses of DOT certification. Accordingly, UPS did not permit Young to work during her pregnancy. Young filed charges of discrimination with the EEOC on the grounds of ADA discrimination and PDA discrimination. Young filed suit against UPS, but UPS prevailed on grants of summary judgment.
Young appeal to the Fourth Circuit, and the court determined that she failed to present evidence that she either had a disability or that UPS regarded her as having a disability. The court noted that UPS believed that Young had only a temporary lifting restriction on account of her pregnancy, which was a relatively manageable weight restriction and short in duration. Thus, the court found that Young presented no evidence that UPS regarded her as disabled. Similarly, the Fourth Circuit did not find that there was a genuine issue of material fact as to whether UPS violated the PDA by denying Young a light duty assignment. With respect to UPS’s policy which did not provide light duty assignments to pregnant workers, the court deemed the policy to be “pregnancy-blind,” and thereby, non-discriminatory. The Fourth Circuit held that Young’s lifting restriction did not require UPS to offer the same accommodations or benefits afforded to individuals accommodated under the ADA. Further, the court determined that Young did not present evidence that similarly-situated employees outside of the protected class of pregnant workers were treated more favorably than Young.
Notwithstanding the holding by the Fourth Circuit, the EEOC has taken the position that employers may be required to provide light duty assignments to pregnant workers where a policy or practice permits light duty assignments to workers injured on the job and/or employees with disabilities under the ADA. The EEOC emphasizes that the PDA requires that pregnant workers be treated the same as non-pregnant workers similar in their ability or inability to work, and this includes equal access to benefits like light duty assignments. Though the Supreme Court will not render an opinion until next term, employers should carefully consider whether pregnancy-related impairments may be disabilities under the ADA.
For more information on the pregnancy discrimination or other human resource needs please contact Clemans Nelson toll free at (800)-282-0787 or at one of the following regional offices:
Akron: 330-785-7700 Cincinnati: 513-583-9221 Dublin: 614-923-7700 Lima: 419-227-4945
