Last week, my colleagues Peter Murphy and Harrison Smith, offered to write about the latest developments in the law regarding pregnancy.  The post was scheduled to come out today, when, much to our surprise, the EEOC yesterday afternoon released long-awaited guidance on the subject.

So much for that post!

After a quick rewrite last night, here’s the very latest that includes both my comments and additional sourcing from Peter & Harrison….

Just a few short weeks ago, the U.S. Supreme Court announced that next term it will once again tackle an issue that raises strong feelings in many women (and men)–how pregnant women are treated in the workplace in comparison to non-pregnant employees. 

As anyone interested in employment law knows, both Congress and the EEOC have focused extensively in recent years on getting employers to provide reasonable accommodations to disabled employees.  Although what constitutes a reasonable accommodation remains a difficult determination in certain circumstances, the need to engage in an interactive dialogue with disabled employees over accommodations now is well established. 

What to do with pregnant employees under the Pregnancy Discrimination Act, however, has been less clear.  The EEOC yesterday chimed in with new guidance on the subject.

But let’s not get ahead of ourselves. First, the background.

The Federal Courts of Appeals are split on whether, and in what situations, an employer that provides work accommodations to non-pregnant, disabled employees with work limitations must also provide work accommodations to  pregnant employees who are “similar in their ability or inability to work” as the non-pregnant employees.  

In the case coming to the Supreme Court, Young v. United Parcel Service, the trial court and the Fourth Circuit held that the PDA does not require employers to provide accommodations to pregnant employees.  

The Fifth, Seventh and Eighth Circuits agree with the Fourth Circuit, while other courts, such as the Tenth Circuit and the Sixth Circuit, hold otherwise.

Since 2012, the EEOC has been kicking around the subject of revising its guidelines on the subject.  By a 3-2 vote, the EEOC decided that it could not wait until the Supreme Court gave birth to a clarifying decision, and so yesterday the EEOC issued its final pregnancy discrimination guidelines.

According to the EEOC:

Congress enacted the Pregnancy Discrimination Act (PDA) 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 of 1964 (Title VII). Thus, the PDA extended to pregnancy Title VII’s goals of ‘[achieving] equality of employment opportunities and remov[ing] barriers that have operated in the past to favor an identifiable group of . . . employees over other employees.’

By enacting the PDA, Congress sought to make clear that ‘[p]regnant women who are able to work must be permitted to work on the same conditions as other employees; and when they are not able to work for medical reasons, they must be accorded the same rights, leave privileges and other benefits, as other workers who are disabled from working.’ The PDA requires that pregnant employees be treated the same as non-pregnant employees who are similar in their ability or inability to work.

On the issue that will be before the Supreme Court, the EEOC has clearly sided with the Ms. Young. However, employers across the country will have to wait to see if the Supreme Court follows the EEOC’s lead. 

EEOC Commissioner Chai Feldblum was kind enough to send me a tweet last night to share her perspective on the new guidance.

In her released statement on her website (hello 21st century!) , Feldblum suggests that the EEOC’s position is “simple and relies on the plain text” of the statute.  Fair enough.

But I would respectfully ask the Commissioner this: If the text is “so” plain, why do we have such a significant split in the Circuits about it?  Is it pure politics by the disagreeing circuits?

Feldblum’s prepared statement is extensive and well sourced, so I commend that to you to read for more background.  For a dissenting view, Commissioner Barker’s statement is available for viewing (courtesy of Robin Shea’s blog.)

In other employment law cases of late, the U.S. Supreme Court hasn’t exactly followed the EEOC’s position, so it remains unclear what the Court will do in Ms. Young’s case. 

As if the uncertain obligations under federal law weren’t enough to create uncertainty in the area, employers in Connecticut must also continue to consider their obligations under Conn. Gen. Stat. 46a-60(a)(7), which provides significant state-law protections for pregnant employees:

  • An employer can’t fire someone for being pregnant;
  • An employer cannot  “refuse to grant to that employee a reasonable leave of absence for disability resulting from her pregnancy.”
  • An employer cannot “fail or refuse to make a reasonable effort to transfer a pregnant employee to any suitable temporary position which may be available in any case in which an employee gives written notice of her pregnancy to her employer and the employer or pregnant employee reasonably believes that continued employment in the position held by the pregnant employee may cause injury to the employee or fetus.

Thus, even if light-duty work is not required under the PDA, a temporary assignment may be required for the pregnant employee under state law!  

Employers are well-advised to engage in an appropriate discussion with pregnant employees who express a need for accommodation during their pregnancy, and to consult with their trusted counsel to ensure that they are not violating any of the applicable laws when addressing that accommodation request.

We’ll continue to review the guidance and share any additional insights in an upcoming post if warranted.