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Pregnancy-Discrimination Collision Course

Though lauded by supporters, last week's EEOC pregnancy-discrimination guidance is being scrutinized by some critics over its timing.

Wednesday, July 23, 2014
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Though hailed by working-family advocates as a much-needed and long-awaited move, the Equal Employment Opportunity Commission's June 14 release of its guidance on pregnancy discrimination is raising many eyebrows as well. Some critics, concerned the agency's move should not have pre-empted the U.S. Supreme Court's upcoming decision in Young v. United Parcel Service Inc., are even offering some rather harsh rebukes.

"I'm baffled more people aren't baffled by this," says Philip Voluck, managing partner in the Blue Bell, Pa., office of Kaufman Dolowich & Voluck.

In a 3-to-2 vote, the EEOC updated a 1983 compliance manual chapter of the Pregnancy Discrimination Act, saying employers are now required -- in keeping with the expanded definition of disability under the amended Americans with Disabilities Act -- to offer light-duty work to pregnant employees if they make light duty available to nonpregnant employees who are similar in their ability or inability to work.

Among other issues, it discusses: the fact that the PDA covers not only current pregnancy, but discrimination based on past pregnancy and a woman's potential to become pregnant; lactation as a covered pregnancy-related medical condition; the circumstances under which employers may have to provide light duty for pregnant workers; and best practices for employers to avoid unlawful discrimination against pregnant workers. It also explains how the ADA's definition of "disability" might apply to workers with impairments related to pregnancy.

Debra L. Ness, president of the Washington-based National Partnership for Women & Families, calls it "a powerful tool in the effort to eradicate the unlawful and unequal treatment of pregnant women in the workplace." Similar praise has come from numerous other organizations advocating for equal parental and pregnancy rights in the workplace.

"We applaud the EEOC for its comprehensive analysis of the protections afforded by the [PDA and the amended ADA]," says Ness, "and for its clear guidance for both employees and employers on how their provisions and amendments should be interpreted."

But while the guidance may indeed offer all of the above, it's the timing of its release, the nay-sayers say, which seems suspect.

On July 1, the Supreme Court agreed to review a U.S. Court of Appeals for the Fourth Circuit ruling that found UPS was not required under the PDA to offer light duty to pregnant employees with work restrictions, even if light duty is available for certain categories of nonpregnant employees. The case revolves around Peggy Young, who—eight years ago—filed charges against her employer, UPS, after being denied light-duty work and let go.

"This is precisely the issue the Supreme Court has yet to take up," says Voluck, "and that decision won't come out until next year some time. In announcing the guidelines, the EEOC chair [Jacqueline Berrien] didn't even refer to the Supreme Court's case. Usually, the EEOC says [a case this identical to a pending high-court case] is designed in unity with the Supreme Court and will be revised [in accordance with its decision], but [there was] none of that.

"I honestly have no idea why this was issued at this time," he says. "A power move? I have no idea. It's like the Perfect Storm, these two entities colliding," he adds, referring to the 2000 movie, "though my crystal ball tells me there's no doubt the Supreme Court will expand the rights of pregnant women."

Indeed, Voluck says, the high court "would be hard-pressed to take a step back and say UPS was in the right." But Voluck and others are concerned about possible confusion in the employer and employment-law communities about which of those entities' rulings and opinions hold the most weight when it comes to compliance and adherence to the law.

In a written statement about her dissenting vote, Commissioner Victoria A. Lipnic says she "question[s] the wisdom of the timing of the commission's actions."

"The most significant questions addressed in the [EEOC's pregnancy guidance] are pending before the U.S. Supreme Court for review and decision in Young v. United Parcel Services Inc.," she writes. "In Young, the court is being asked to decide which workers are the appropriate comparators to a pregnant worker under the Pregnancy Discrimination Act and what treatment a pregnant worker may be entitled to under that statute. Insofar as these issues—of central importance to the guidance—will soon be decided by the court, I think it is unwise of the commission to issue guidance at this time, potentially setting forth standards and practices for employers that may well be mooted in the very near future, depending on how the court decides Young.

"Moreover," Lipnic adds, "the credibility of the [EEOC] is done no favor by issuing any guidance on these points while these critical questions are pending ... . Rather than attempt to get out in front of the court, I think it would have been most prudent to allow the court to decide these issues, and then issue guidance in light of the court's Young decision."

In a separate dissenting statement, Commissioner Constance Barker incorporates an internal May 23 memorandum in which she had urged fellow commissioners not to adopt a draft guidance without public review and comment, according to a report on the Bloomberg BNA site.

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"Barker had identified as ‘fatal flaws' provisions regarding the PDA's purported requirements regarding light duty, accommodations and coverage of contraceptives in employee-health-benefit plans," the Bloomberg report states. "She said on each of those issues, the EEOC guidance adopts interpretations of the PDA that aren't supported by the statute or relevant case law."

The story goes on to say Barker expressed concern that the new guidance might conflict with the Supreme Court's decision in Young, and that the EEOC is trying to "jump the gun" on Congress.

"If the Pregnant Workers Fairness Act is passed, this enforcement guidance should certainly incorporate those new expanded rights for pregnant employees," Barker writes in her statement. "However, it is a misuse of [the EEOC's] authority to jump ahead of Congress and attempt a back-door amendment to the PDA by incorporating the concepts of the proposed legislation without waiting for Congress to take the bill under consideration."

Commissioner Chai Feldblum, who voted for the guidance and its release, however, disputes the dissenters in her written statement, saying it "elevates pregnant employees to a kind of super-status above that of individuals with disabilities."

Her statement reads: "Equal treatment, regardless of an individual's physical or mental limitations or perceived limitation, has always been at the heart of the disability-rights movement." The guidance, she writes, "does nothing to undercut that goal. If anything, [it] furthers that goal by explicating the accommodations that are required for an additional group of workers that Congress was also concerned about -- pregnant workers."

In a Washington Post story, Feldblum also says 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," she tells the Post. "We're just not."

The question, critics say, is which governing body will have the final say on what's required by law to fix the problem.

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