Friday, July 18, 2014

Keeping the EEOC’s new Pregnancy Guidance in Perspective

Earlier this week, the EEOC issued new guidance about how employers should treat pregnant workers.  Pregnancy discrimination has been on the agency’s list of priorities since 2012, and new enforcement guidance has been contemplated for a while, so this isn’t a huge surprise.
There was some disagreement among the Commissioners about the timing of this guidance. Commissioners Feldblum and Barker have issued statements about the timing, as well as the history and background of the EEOC’s position. Agency watchdogs and other discrimination law geeks will want to review those.  Commentators including Robin Shea, Eric B. Meyer, and Jessica Sparks have published their takes on the guidance, the timing controversy, and what lies ahead. Nobody knows, however, whether the Supreme Court will agree with the EEOC about employers’ obligations to pregnant employees. Lower courts have decided different ways.  EEOC guidance doesn’t have the force of law, and we can’t be sure, for now, exactly how federal law is going to shape up, so while the new guidance is interesting and important, it’s just one piece of the puzzle for employers trying to figure out what to do.
A few weeks back, we noted that state and local governments around the country have passed or are considering legislation intended to better protect pregnant workers. It’s really important for employers to stay up to date with what’s happening in the places where they have workers.  The impact of state and local laws could be much more immediate, and much greater, than the impact of the EEOC guidance.  Check here for a list of jurisdictions that have recently enacted such legislation.
It’s important to remember that the bedrock concept at work here is sex discrimination, which includes discrimination on the basis of pregnancy and which is prohibited everywhere. This is law that has been litigated and interpreted for decades. In some states, the notion that employers should treat pregnancy-related disabilities exactly the same as non-pregnancy-related disabilities (which is a controversial part of the new EEOC guidance) is not new.
So is there any news here at all?  From my perspective, no, but there’s a trend at work.  More attention is being paid to the impact of pregnancy on women’s economic status.  More states are passing legislation designed to lessen that impact by requiring the effects of pregnancy – even “routine” pregnancy – to be accommodated in the workplace.  Some courts are interpreting existing federal and state law to require such accommodations.  The United States Supreme Court is going to decide pretty soon whether Title VII and the PDA require pregnancy accommodations.  Meanwhile, Congress is considering passing new federal law on the topic, so the Supreme Court’s decision may not matter. Until and unless it’s told to stop by the Supreme Court or Congress, the EEOC is taking the position that accommodations are required. Given all that, employers should make certain that their policies and practices are in compliance with state and local law on this topic, and should recognize that for now, at least, the EEOC will expect compliance with its new guidelines.  For a detailed review of EEOC expectations, take a look at the Best Practices section.
Posted by: Judy Langevin
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