This topic has been hot for a while now, ever since Peggy Sue got married. Wait, that’s not right. Oh yes — ever since Peggy Young sued UPS alleging pregnancy discrimination. You may recall that in the midst of that lawsuit the EEOC issued new guidance under the Pregnancy Discrimination Act (PDA). We covered this in our August 2014 ELR. However, that guidance was under attack and at issue as the Peggy Young v. UPS case made its way through the court system. The United States Supreme Court issued its opinion in Ms. Young’s case on March 25 of this year, reversing the win for UPS and remanding the case for further proceedings. You can read more in our April 2015 ELR.
The other thing that resulted from the Supreme Court’s decision was that the EEOC was required to revisit its Guidance. In fact, they immediately put a notice on their online Guidance stating it was under review. Well, it’s apparently time for the big — or not so big — reveal.
Much of the Guidance remains undisturbed, specifically on the following topics: the PDA’s application to current, past, and potential pregnancy; termination or refusal to hire based upon pregnancy; other prohibited employment actions based upon pregnancy; application of the PDA to lactation and breastfeeding; prohibition of forced leave policies; the obligation to treat women and men the same with regard to “parental” leave policies; and access to health insurance.
So what’s new? The EEOC had originally commented upon the issues central in the Peggy Young case — facially neutral policies which impacted Ms. Young who was pregnant. In a nutshell, UPS did provide light duty work to persons covered by the Americans with Disabilities Act (ADA), persons covered by workers’ comp laws, and certain persons covered by DOT regulations. These did not apply to Ms. Young however. When she sought light duty due to pregnancy restrictions, UPS did not accommodate her request. She was placed on unpaid leave causing her to lose her health care coverage (she was not eligible for FMLA-protected leave). Because the Supreme Court interpreted the issues differently than the EEOC, the new Guidance discusses the burdens of proof outlined by the Supreme Court.
What is helpful for you to know?
• The Pregnancy Discrimination Act is alive and well. It covers pregnancy, childbirth, and related medical conditions. It is probably broader than you think.
• The Americans with Disabilities Act is also probably broader than you think and may cover many pregnancy-related conditions.
• If you want to understand the EEOC’s perspective, there are three documents at your disposal (I’m putting them in order of ease of reading)
- Fact Sheet for Small Business: Pregnancy Discrimination
- Questions and Answers about the EEOC’s Enforcement Guidance on Pregnancy Discrimination and Related Issues
- EEOC Enforcement Guidance on Pregnancy Discrimination and Related Issues
Despite its name indicating it applies only to small businesses, we strongly recommend everyone read the Fact Sheet above. It discusses pregnancy as relates to the PDA, the ADA, and the FMLA. With it, you will have a starting foundation.
Now, having said that, let me follow up with an editorial comment. The EEOC is stating its interpretation of the law in these documents. These do not have the “force of law,” but are often given deference by the courts. Many of the issues presented are complicated factual questions with no easy answers.
Over the next months and years, we expect that more pregnancy-related cases will be decided at which time we will know whether the Courts agree with all or just some of the EEOC’s interpretations.
Until then, proceed with caution.
By Kristen L. Brightmire, kbrightmire@dsda.com