New EEOC Enforcement Guidance on What to Expect When Your Employee is Expecting

After Congress passed the Civil Rights Act of 1964, women thought they would have the full legal right to equal treatment at work. However, in 1974, the Supreme Court surprised Civil Rights advocates by holding that discrimination against pregnant women was not sex discrimination, and was actually lawful. Geduldig v. Aiello, 417 U.S. 484 (1974).

Congress responded by passing the Pregnancy Discrimination Act of 1978 (the PDA). It extends the protections of Title VII of the Civil Rights Act of 1964 to protect pregnant women. In 1991, the Americans with Disabilities Act provided protection to disabled workers (federal employees are similarly protected by the Rehabilitation Act).  In 2008, the National Partnership for Women & Families found that women, especially women of color, have been filing pregnancy discrimination complaints faster than the influx of women into the workplace.  While the volume of complaints have increased, the issues these women raise have remained mostly the same: for example, forced leave based on pregnancy.

The time is ripe, then, for some higher-level guidance into what these protections mean to employers and employees.  Both the Supreme Court and the EEOC are poised to take the lead: on July 1, 2014, the Supreme Court granted certiorari in Young v. United Parcel Service, a case in which plaintiff-appellant Peggy Young alleged that UPS violated the PDA when it provided benefits for non-occupational sickness or accidents, but not for pregnancy related sickness or restrictions; on its heels, the EEOC published updated guidance on pregnancy discrimination and related issues.

Ironically, this partnership has raised concerns of less rather than more clarity.  The problem is this: when Ms. Young became pregnant, she requested light duty work from UPS after providing  a note from her midwife stating that she should not lift more than 20 pounds. However, she also informed the health manager that she would rather continue in her normal capacity than be forced to take unpaid leave.  If Ms. Young had requested accommodation for an “injury” or “medical condition,” UPS would have easily granted her request.  Because she was pregnant, the health manager forced Ms. Young to take unpaid leave until “she was no longer pregnant.”  The Fourth Circuit ruled against Ms.Young, disregarding, among other things, EEOC’s prior interpretations of the Act.  The EEOC’s updated guidance disagrees with this decision.  The EEOC believes that Ms. Young should have been given fair consideration for any light duty position that might exist or might arise during her pregnancy, and that UPS must allow her to continue working in her current position if she so chooses.

EEOC Commissioner Victoria A. Lipnic has questioned the wisdom of publishing guidelines when the upcoming Supreme Court case could make it moot. She dissented from the Guidance, stating that the EEOC is overreaching. Nevertheless, Commissioner Chai Feldblum stressed the importance of the update: “There’s a reason we needed to update the guidelines, and that’s because this problem hasn’t gone away. This is an enduring problem in America’s workplaces – we’re not where we need to be with regard to fair, equal treatment of pregnant workers. We’re just not.”  So, even though it appears that the EEOC has taken an early bite at the apple, we remain at a cliff-hanger until the Supreme Court weighs in.