EEOC’s New Pregnancy Discrimination Act Enforcement Guidance Expands Law

Last week, the EEOC issued updated Enforcement Guidance concerning the Pregnancy Discrimination Act, which had last been issued in 1983.  Although it is not a binding regulation, this is the document which EEOC investigators are required to apply in conducting investigations and can be used in litigation as an influential statement of the law by the agency charged with enforcing it.    As expected, the new Enforcement Guidance expanded the reach of the PDA.   Moreover, the EEOC now contends that all pregnant employees are entitled to reasonable accommodations offered to disabled employees under the ADA, maternity leave (from the first day of work) and light duty under a variety of legal theories.  Not all courts have adopted the EEOC’s expansive view of the PDA, but employers can expect an increase in litigation on these issues by private plaintiffs and the EEOC until these issues are definitively resolved.

The PDA amended Title VII so that “discrimination on the basis of sex” would include “pregnancy, childbirth or related medical conditions.”  In particular, the following provision was incorporated into Title VII:

(k) The terms 'because of sex' or 'on the basis of sex' include, but are not limited to, because of or on the basis of pregnancy, childbirth, or related medical conditions; and women 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 but similar in their ability or inability to work, and nothing in section 703(h) of this title shall be interpreted to permit otherwise. This subsection shall not require an employer to pay for health insurance benefits for abortion, except where the life of the mother would be endangered if the fetus were carried to term, or except where medical complications have arisen from an abortion: Provided, That nothing herein shall preclude an employer from providing abortion benefits or otherwise affect bargaining agreements in regard to abortion.

This PDA has been interpreted to include discrimination against women based on their desire or intention to eventually become pregnant or because they are capable of becoming pregnant.  This can occur, for instance, when an employer engages in paternalistic decisionmaking and decides that certain jobs or duties are too dangerous for pregnant employees or women in general.  The EEOC considers “related medical conditions” to include gestational diabetes, preeclampsia, and lactation.

Reasonable Accommodations.  The EEOC concedes, as it must, that the ADA provides that pregnancy is not a disability.  However, “[p]regnancy-related impairments are disabilities if they substantially limit one or more major life activities or substantially limited major life activities in the past.” More importantly, in a footnote, the EEOC observed that:

The expanded definition of "disability" under the ADA also may affect the PDA requirement that pregnant workers with limitations be treated the same as employees who are not pregnant but who are similar in their ability or inability to work by expanding the number of non-pregnant employees who could serve as comparators where disparate treatment under the PDA is alleged.

In other words, if the ADA requires an employer to provide a reasonable accommodation to a disabled employee, it must also provide the same accommodation to a pregnant employee in order to show uniform treatment.  Therefore, the EEOC expanded upon this argument to announce the following:

Title VII requires that individuals affected by pregnancy, childbirth, or related medical conditions be treated the same for all employment-related purposes as other persons not so affected but similar in their ability or inability to work. Thus, an employer is obligated to treat a pregnant employee temporarily unable to perform the functions of her job the same as it treats other employees similarly unable to perform their jobs, whether by providing modified tasks, alternative assignments, leave, or fringe benefits.

An employer may not refuse to treat a pregnant worker the same as other employees who are similar in their ability or inability to work by relying on a policy that makes distinctions based on the source of an employee's limitations (e.g., a policy of providing light duty only to workers injured on the job). However, an employer may treat a pregnant employee the same as other employees who are similar in their ability or inability to work with respect to other prerequisites for obtaining the benefit that do not relate to the cause of an employee's limitation. For example, a pregnant worker who needs changes in her duties or schedule would be responsible for conveying the request to her supervisor and for providing reasonable documentation of her limitations if this is what the employer requires of employees who seek workplace changes for reasons other than pregnancy. Similarly, if a pregnant worker requests a change that the employer is providing as a reasonable accommodation to a co-worker 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.  (italics added for emphasis).

Pregnant workers can also be “regarded” as disabled under the ADAA or have a history of a disability.

Lactation.  As mentioned, the EEOC considers lactation to be a related medical condition to pregnancy.  The EEOC’s FAQ notes that “if an employer allows employees to change their schedules or use sick leave for routine doctor appointments and to address non-incapacitating medical conditions, then it must allow female employees to change their schedules or use sick leave for lactation-related needs.”  Moreover,

[i]n addition to being protected under the PDA, female hourly employees who are breastfeeding have rights under other laws, including a provision of the Patient Protection and Affordable Care Act that amended the Fair Labor Standards Act to require employers to provide reasonable break time and a private place for breastfeeding employees to express milk.

Light Duty.  Many employers provide light duty to employees injured on the job who are receiving workers compensation.  As a Sixth Circuit panel ruled in December, the EEOC now contends that these employers must similarly provide light duty to pregnant employees who need and request it if the employer:

provides light duty for employees who are not pregnant but who are similar in their ability or inability to work. An employer may not treat pregnant workers differently from employees who are similar in their ability or inability to work based on the cause of their limitations. For example, an employer may not deny light duty to a pregnant employee based on a policy that limits light duty to employees with on-the-job injuries.

Contraception Coverage.  The EEOC also considers the PDA to prohibit “discrimination related to a woman's use of contraceptives.   It rejects in footnote 38 of the Guidance the argument (adopted by some courts) that contraception coverage is not an issue under the PDA because it arises before pregnancy because contraception applies to a “potential pregnancy.”  Therefore, “an employer could not discharge a female employee from her job because she uses contraceptives.”

 Although it concedes that there may be religious exemptions under the Supreme Court’s recent Hobby Lobby  decision, the EEOC views the exclusion of contraception coverage as sex discrimination under the PDA:

Employers can violate the PDA by providing health insurance that excludes coverage of prescription contraceptives, whether the contraceptives are prescribed for birth control or for medical purposes. 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 preventive care for medical conditions other than pregnancy, such as vaccinations, physical examinations, or prescription drugs to prevent high blood pressure or to lower cholesterol levels, then prescription contraceptives also must be covered.

Maternity Leave.  The EEOC also argues that denying or limiting the length of maternity leave – even under a uniformly applied policy – can create an illegal discriminatory impact on pregnant women:

A policy that restricts leave might disproportionately impact pregnant women. For example, a 10-day ceiling on sick leave and a policy denying sick leave during the first year of employment have been found to disparately impact pregnant women.

If a claimant establishes that such a policy has a disparate impact, an employer must prove that the policy is job related and consistent with business necessity. An employer must have supporting evidence to justify its policy. Business necessity cannot be established by a mere articulation of reasons. Thus, one court refused to find business necessity where the employer argued that it provided no leave to employees who had worked less than one year because it had a high turnover rate and wanted to allow leave only to those who had demonstrated "staying power," but provided no supporting evidence. The court also found that an alternative policy denying leave for a shorter time period might have served the same business goal, since the evidence showed that most of the first year turnover occurred during the first three months of employment.

Parental Leave.  While an employer need only provide maternity leave for as long as the mother is physically restricted, if it provides additional “bonding” leave to the mother, the EEOC says that it must similarly provide such child-care leave to the father under the PDA:  “If, for example, an employer extends leave to new mothers beyond the period of recuperation from childbirth, it cannot lawfully refuse to provide an equivalent amount of leave to new fathers for the same purpose.”  

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

Pregnant Expectations in Ohio: Expansions and Contractions

Ohio Civil Rights Commission Expands Maternity Leave Benefits Beyond Those Required by Federal Law.

On Thursday, October 25, 2007, the Ohio Civil Rights Commission (OCRC) approved an amendment to Ohio Administrative Code § 4112-5-05 governing sex discrimination which will affect all employers (of four or more employees) who interview, hire or employ pregnant employees. The regulatory amendment must still be approved by the Joint Commission on Agency Rule Review and will then take affect in 30 days. If approved, the amendment will have a significant impact on employment policies governing maternity leave and other benefits given to employees:

• Pregnant employees are entitled to light duty positions, other modified work programs and receipt of fringe benefits to the same extent as non-pregnant employees who are similar in their ability to work regardless of any distinctions or qualifications currently made in the employer’s policies regarding length of service, nature of the medical condition or whether the medical conditions is related to an on-the-job injury. In other words, if certain benefits and light duty job assignments are only available to employees who were injured on the job (so that they could not received income replacement from a workers’ compensation injury) or only to employees who have been employed for at least, for example, six months, those same benefits must be made available to an “employee affected by pregnancy, childbirth or related medical condition” regardless of whether the pregnant employee was injured on the job or had only been employed one day. On the other hand, if the employer does not offer light duty or modified work assignments to any employees, pregnant employees will not be entitled to them either.


• Employment policies which provide for “less than twelve weeks of pregnancy, childbirth or maternity leave . . . shall be presumed to have a disparate impact on women and constitute unlawful sex discrimination unless justified by business necessity (when “an adverse employment action is taken against an employee who is temporarily limited, in part or in whole, in her ability to work due to pregnancy, childbirth or a related medical condition”).


• “No employer shall be permitted to place an employee affected by pregnancy, childbirth or a related medical condition on mandatory leave, or otherwise limit or alter her job duties, in the absence of an objective, verifiable safety justification and only when the pregnancy or related medical condition interferes with her ability to safely perform her position.”

The OCRC current regulation requires only a leave of absence for a “reasonable period of time” and subjected the leave to the same minimum length of service requirements as required of non-pregnant employees who were eligible for medical leaves of absence. Even if employers did not have a medical leave of absence policy, they are still required under the current regulations to provide a reasonable period of time for maternity leave.

Under federal non-discrimination law, employers are only required to treat pregnant employees the same as other employees who are similarly limited in their ability to work. Therefore, if the employer did not offer any medical or sick leave, pregnant employees were not entitled to any medical leave.

Under the FMLA, pregnant employees are entitled to twelve weeks of medical leave, but only to the extent that they qualify, have not otherwise exhausted their twelve-week entitlement in that calendar year, and, coodinate parental leave with a spouse who works for the same employer. The new OCRC regulation is silent about whether an employer must provide the twelve weeks of pregnancy leave without regard to the non-maternity leaves provided under the FMLA or how many weeks of maternity leave the employee has already taken in any twelve month period.

To view the redline version of the amendment, please click here.

Unemployment Compensation Denied to Able-Bodied Pregnant Employee Forced to Take Maternity Leave by CBA.

On October 11, 2007, the Cuyahoga County Court of Appeals affirmed the denial of unemployment compensation to a pregnant airline attendant who was forcibly laid off following her 27th week of pregnancy (despite her doctor’s certification that she was able to work) pursuant to the terms of a collective bargaining agreement (which the employer argued was required by FAA regulations). Continental Airlines, Inc. v. Ohio Dept. of Job & Family Servs., 2007-Ohio-5434. The court held that the CBA constituted a common law exception to the prohibition in Ohio Revised Code § 4141.29 against waivers of unemployment compensation. “The Unemployment Compensation Act is not intended for individuals who voluntarily agree to a period of partial unemployment, particularly when the individuals continue to accrue seniority, remain covered under the employer's insurance program, remain eligible for sick pay, and are able to return to their former job as soon as they are able." The court also noted that “the terms of the collective bargaining agreement, mutually negotiated at arms-length by [the claimant’s] union and Continental compel our conclusion that [the claimant] was voluntarily unemployed.”

The court followed a pre-Pregnancy Discrimination Act common pleas case from 1963, Leach v. Columbus Plastics Products, Inc., where the Franklin County Court of Common Pleas held that: "An employee on leave of absence for pregnancy, during a period that such leave is mandatory under rules established pursuant to a collective bargaining agreement, is not entitled to unemployment compensation benefits since she is not `available for suitable work' as required by division (A)(4) of Section 4141.29, Revised Code."

“The overarching analysis of Ohio unemployment compensation law as it relates to this case must determine whether [the claimant] is the type of temporarily unemployed worker to whom the law contemplates providing unemployment benefits. Our analysis concludes that she is not. As a union represented worker, [the claimant] is a party to the collective bargaining agreement. As such, she agreed to stop flying after her 27th week of pregnancy in exchange for the accrual of seniority while on maternity leave, continued coverage under Continental's health insurance plan for the duration of the leave, the option of using sick time during the maternity leave, and full reinstatement at the end of maternity leave. In addition, the collective bargaining agreement gave [the claimant] a one-time option to extend maternity leave for up to 12 months. These contract terms were reached as a result of arms-length negotiations between Continental and [the claimant’s] union, so [the claimant] validly waived the right to unemployment compensation benefits.”

While the court questioned the legality and discriminatory nature of the mandatory maternity leave provision in the CBA, it refused to alter its analysis of the unemployment statute. Its analysis is consistent with a 1987 Supreme Court decision upholding the denial of unemployment compensation to a Missouri woman who was refused reinstatement to her job following a maternity leave under a similar unemployment statute which provided that unemployment compensation is not available to an employee who "has left his work voluntarily without good cause attributable to his work or to his employer." Wimberly v. Labor and Industrial Relations Commission of Missouri, 479 U.S. 511. While federal law at that time precluded the denial of unemployment compensation “solely” on the basis of pregnancy, this did not require preferential treatment for pregnancy when the state law provided that all persons who leave their jobs are disqualified from receiving benefits unless they leave for reasons directly attributable to the work or to the employer.

Insomiacs can read the full decision at http://www.sconet.state.oh.us/rod/newpdf/8/2007/2007-ohio-5434.pdf.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with an attorney.