On July 14, 2014, the EEOC issued new enforcement guidelines regarding the PDA and ADAAA. 

EEOC Guideline Recommendations

Of most interest, positions advanced by the EEOC in the guidelines include the following:

• An employee temporarily unable to perform job duties due to pregnancy must be treated the same as non-pregnant employees who are temporarily unable to perform the functions of the job;
• Light duty must be afforded pregnant employees in the same manner granted to other employees who are “similar in their ability or inability to work”;
• Employers should recognize lactation as a condition covered under the PDA and monitor requests accordingly; and
• In some circumstances, a temporary condition during the course of pregnancy may constitute a disability under the ADAAA.

Political Background

Of the five EEOC commissioners, only three supported the issuance of the guidelines.  One of the primary points of contention was that a pending United States Supreme Court Case, Young v. United Parcel Services, Inc., may effectively negate or alter the import of the guidelines.  In Young, a driver working for United Parcel Service (UPS) requested light duty during her pregnancy.  UPS requires drivers to be able to lift 70 or more pounds, and Young presented a doctor’s note indicating she should not lift more than 40 pounds.  UPS rejected Young’s request because UPS’s policies did not provide for light duty because of pregnancy.

Even though UPS offered Young leave over and above her entitlement under the Family and Medical Leave Act, Young sued UPS, arguing (in part) that it discriminated against her in denying her light duty request.  The Fourth Circuit Court of Appeals ultimately disagreed with Young, holding that UPS had enforced pregnancy-neutral policies, and Young’s 40-pound lifting restriction did not give rise to a disability under the ADAAA.¹   The Supreme Court has agreed to hear Young’s case against UPS, and it remains pending.

Practical Recommendations for Employers

• Courts only have an obligation to follow EEOC guidelines to the degree that they recognize the “persuasive power” of the guidelines.  However, employers should recognize that, absent further direction from the Supreme Court, the federal and state agencies investigating pregnancy discrimination charges will look to EEOC guidelines for guidance.  The EEOC reports that the number of pregnancy discrimination charges continues to rise – citing a 46% increase in charges filed between 2007 and 2011.
• Employers should evaluate requests for light duty made by pregnant employees in the same manner as they would any other request for light duty, including those made by employees with work-related injuries.  Absent further direction from the Supreme Court, the previously recognized defense of having a “pregnancy-neutral” policy that afforded leave to other groups of employees will be scrutinized for adverse impact upon pregnant employees.
• The EEOC has emphasized its focus on employee requests related to lactation, and employers should respond to the lactation-related requests with the same insight and sensitivity that would be used with respect to any other condition.

Conclusion

In many ways, the guidelines reiterate the EEOC’s stance on PDA enforcement, and its position that the PDA applies to current pregnancies and previous and possible future pregnancy-related situations.  However, the guidelines represent a marked departure from policies considered standard by many employers, such as treating work-related injuries differently than pregnancy.  Prior to the Supreme Court’s ruling on the Young case, employers should evaluate all employee requests and issues related to pregnancy accordingly.

For more detailed discussion and additional links to Enforcement Guidance, a Question-and-Answer document and an EEOC fact sheet, click here.

Additional Information

For more information about these decisions or how we can assist your workplace, please contact your Kutak Rock attorney or the authors of this alert.

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¹ 707 F.3d 437 (4th Cir. 2013), cert. granted, 81 U.S.LW. 3602 (U.S. July 1, 2014)(No. 12-1226).