TBA Law Blog


Posted by: Christy Gibson on Sep 29, 2014

By Jonathan O. Harris*

Our friends at the EEOC are at it again.  Despite a year of bad press due to their repeated acts of overreaching, the Commission has continued to push the envelope, this time with the summer release of “guidance” on the Pregnancy Discrimination Act (“PDA”).

The Commission’s guidance was issued on July 14, 2014, and it was immediately controversial.  For starters, the EEOC gave little to no notice that the guidance was forthcoming.  As such, employers were left without an opportunity to provide their perspective on the PDA’s requirements prior to the guidance’s issuance.  What is more, the guidance just barely passed, by a 3-to-2 vote of commissioners.

Substantively, the guidance is notable for it attempt to conflate the requirements of the PDA with the requirements of the Americans with Disabilities Act (“ADA”).  According to the EEOC, employers must provide reasonable accommodations to pregnant employees.  The agency gets to this result via two routes which, in its eyes, both equally require accommodations to pregnant employees.

First, the EEOC looks to the PDA, which states that “women affected by pregnancy ... shall be treated the same for all employment-related purposes ... as other persons not so affected but similar in their ability or inability to work.” 42 U.S.C. § 2000e(k).  Citing this language, it is the EEOC’s view that if an employer provides light duty to some of its employees, it must provide it to pregnant employees as well, since doing so would not be treating those employees “the same for all employment-related purposes.”  For example, if an employer offers light duty for employees who are injured at work, but not for pregnant employees, that employer violates the PDA—so believes the EEOC.

Second, the EEOC looks to the ADA.  While saying that not all pregnancies constitute a disability within the meaning of the ADA, the EEOC then goes on to say that a pregnant employee shall be considered disabled if she has “pregnancy-related impairments” such as “nausea” or “swelling, especially in the legs.”  Given how often such conditions arise in pregnancies, it is safe to assume that, as a practical matter, the agency deems all pregnant employees to have a disability and thus be eligible for accommodations.

The expansion of the PDA’s coverage goes further in this guidance.  According to the EEOC, a policy that only allows for a short period of leave for new employees can have a disparate impact on pregnant employees, and thus violates the PDA, absent the proving of a business necessity for that policy.  A weightlifting requirement can cause a disparate impact too, because the EEOC believes it causes a disparate impact on pregnant employees.

Not content to stop there, the guidance attempts to tackle some social issues of the day.  The EEOC states that employment decisions based upon a female employee’s use of contraceptives violates Title VII.  An employer also violates Title VII by providing health insurance that excludes coverage for prescription contraception, so says the EEOC.  Continuing still, the guidance states that Title VII protects women from being fired for having an abortion or contemplating an abortion, and that it violates the PDA to pressure an employee to have or not have an abortion.

In a representative democracy, one must ask whether it makes sense for an agency to be making the sweeping proclamations set forth above.  There may very well be sound policy reasons for some of these proclamations. But the EEOC has, in effect, rewritten the PDA and ADA to say things that, as written by Congress, those acts do not say.

Keep an eye on the upcoming Supreme Court case of Clark v. United Postal Service.  In that case, the Supreme Court will decide whether or not the PDA requires employers to provide light duty to pregnant employees, if they also provide light duty to employees injured on the job.  Irrespective of how that case is decided, it will still be the EEOC’s position that the ADA requires employers to give pregnant employees light duty, if they have nausea, swollen ankles or difficulty lifting.  It will likely be some time before all of the above issues are addressed by the courts.

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*Jonathan O. Harris is a shareholder at the Nashville office of Ogletree Deakins, where he represents employers in employment and labor law matters. He is a graduate of Washington University School of Law.  Jon may be reached at 615-687-2215 or jon.harris@ogletreedeakins.com.