By Paul Kehoe
Today, without the fanfare of a public meeting, the U.S. Equal Employment Opportunity Commission published Guidance on its website addressing the treatment of pregnancy under Title VII. Once again, it appears as if the EEOC adopted a position exceeding the statutory mandate that Congress bestowed upon it. Requiring employers to provide a reasonable accommodation under Title VII of the Civil Rights Act of 1964 for all pregnant employees finds no statutory basis in the text of Title VII, the Americans With Disabilities Act, as amended, or the Pregnancy Discrimination Act (the “PDA”). Indeed, the overwhelming majority of the Circuit Courts of Appeals that have reviewed the issue have held that the PDA does not include a reasonable accommodation requirement. Despite that, a majority of the EEOC’s Commissioners determined otherwise. Commissioners Barker and Lipnic both issued statements—immediately after the EEOC posted the Guidance on its website—questioning the wisdom of the majority’s actions on procedural and substantive grounds, each recognizing that the in adopting the new Guidance, the Commission sought to legislate changes to, rather than interpret, Title VII.
This is a controversial issue for employers. On might reasonably argue that when the U.S. Supreme Court reviews Young v. United Parcel Serv., 707 F.3d 437 (4th Cir. 2013), in its next term, it should grant this Guidance the deference it deserves—none.
This bald attempt to jump over a pending Supreme Court case and federal legislation, however, may backfire against the EEOC as the Supreme Court has rather routinely rejected EEOC guidance in recent years. See, e.g., Vance v. Ball State University, 133 S. Ct. 2434 (2013) (rejecting the EEOC’s definition of “supervisor” and held that an employee is a supervisor only where the employer has empowered the employee to take tangible employment actions against the employee rather than the EEOC’s more expansive definition); Univ. of Texas Southwestern Med. Ctr. v. Nassar, 133 S. Ct. 2517 (2013) (rejecting the EEOC’s position that retaliation claims under Title VII were subject to the “motivating factor” causation standard); Hosanna-Tabor Evangelical Lutheran Church v. EEOC, 132 S. Ct. 694, 707 (2012) (rejecting the EEOC’s position that the ministerial exception did not apply to ADA retaliation cases). The Supreme Court’s decisions were often based on the lack of statutory support for the EEOC’s positions. Like all regulatory agencies, the EEOC does not operate in a vacuum or in pursuit of policies which it may desire to implement but rather may act only pursuant to the authority given to it.
Without a doubt, given the broad expansion of covered disabilities under the ADAAA, many more pregnancy-related impairments now likely rise to the level of an ADA-covered disability (e.g., anemia, pregnancy-related sciatica, pre-eclampsia, gestational diabetes). In these instances, a pregnant employee would be afforded the same right to reasonable accommodation under the ADA as any other individual with a disability, regardless of whether the impairment was related to pregnancy. In addition, twelve jurisdictions have adopted pregnancy accommodation statutes or ordinances. However, the Guidance asserts that the reasonable accommodation requirement applies even for those pregnant employees whose impairments do not rise to the level of a disability under the ADA (e.g., those with a “normal” pregnancy) notwithstanding that under the ADA, pregnancy is not an impairment.
The standards adopted in the Guidance are currently proposed in the Pregnant Worker’s Fairness Act (the “PWFA”), S. 942 and H.R. 1975. The PWFA, if enacted, would make it an unlawful employment practice to not provide a reasonable accommodation to the known limitations related to pregnancy or force a pregnant employee to take leave, among other things. Rather than waiting until the legislative process is complete, the Guidance preemptively reaches the same conclusion under the theory that the reasonable accommodation requirements of the Americans with Disabilities Act of 1990 were incorporated into the PDA, which was enacted in 1978.
Implications For Employers
As a practical matter, employers will feel the greatest impact of the Guidance in the area of light duty and leave as applicable to female employees with “normal” pregnancies. Currently, under federal law, where an employer’s policy provides leave or light duty for employees injured or otherwise medically limited in their ability to work for any reason, a pregnant employee is entitled to such leave—the fact that her limitation arises from a normal pregnancy, rather than an injury or medical condition—is irrelevant. Conversely, as was permissible in Young, where an employer’s light duty or leave policy limits eligibility to those with a disability or those with on the job injuries, an employee with a normal pregnancy would not be eligible for light duty. Under the Guidance, employers would be required to provide light duty and/or leave for all pregnant employees, regardless of whether they were “disabled” under the ADA.
Notably, the EEOC’s process in adopting the anticipated Guidance ignored the standards articulated by the Office of Management and Budget (“OMB”) in its “Final Bulletin for Agency Good Guidance Practices” (No. M-07-07, January 18, 2007). That document—which “establishes policies and procedures for the development, issuance, and use of significant guidance documents by Executive Branch departments and agencies”—sets forth a number of recommendations for significant guidance documents. While it stops short of requiring agencies to provide pre-adoption notice and comment on all significant guidance documents, it recognizes that “it is often beneficial for an agency to do so when they determine that it is practical. Pre-adoption notice and comment can be most helpful for significant guidance documents that are particularly complex, novel, consequential, or controversial.”
As this Guidance adopted a standard that is currently pending before Congress and the Supreme Court, a standard overwhelmingly (though not unanimously) rejected by the Circuit Courts of Appeals, and one which essentially eviscerates the EEOC’s prior position that pregnancy is not a disability (which was issued during a notice and comment rulemaking), all without public comment or an opportunity for dissenting Commissioners to publicly object to the Guidance, its adoption casts a pall over its legitimacy. Unfortunately, the EEOC has decided that the legislative and judicial processes are not necessary when rewriting the statutes that it enforces.