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EEOC's release of updated pregnancy discrimination guidance raises concerns

EEOC updates employer guidance for first time in 30 years


The decision last week by the U.S. Equal Employment Opportunity Commission to issue updated guidance for pregnancy discrimination has generated controversy as legal experts debate the scope and timing of the new rules.

Proponents of the guidance say the update, which seeks to clarify an employer's responsibility under the Pregnancy Discrimination Act of 1978, as well as Title I of the Americans with Disabilities Act, is long overdue.

Conversely, others argue that the new guidance is overly broad and should have been delayed in light of the U.S. Supreme Court's recent decision to hear the case of Peggy Young v. UPS, which centers on an employer's obligation to provide “light duty” work for pregnant employees.

“This is the first comprehensive update of the commission's guidance on the subject of discrimination against pregnant workers since the 1983 publication of a Compliance Manual chapter on the subject,” said Kimberly Smith-Brown, communications director for the EEOC Office of Communications and Legislative Affairs. “This guidance supersedes that document and incorporates significant developments in the law during the past 30 years.”

Ms. Smith-Brown said the biggest change in the new guidance is that it broadens the definition of “disability” under the auspices of the ADA Amendments Act in order to makes it easier for pregnant workers with a variety of impairments to demonstrate that they have covered disabilities for which reasonable accommodation may be required.

The guidance provides important clarity for employers, employees and the courts, said Emily Martin, Washington-based vice president and general counsel of the National Women's Law Center.

“There has been a real need for the EEOC to clarify some issues under the law. It provides real strong guidance on when employers are obligated to make accommodations for pregnant workers that need them,” Ms. Martin said.

Others contend that by addressing issues such as light duty, the EEOC is pushing the Pregnancy Discrimination Act beyond its original intent.

“They are certainly interpreting the language of the existing law as broadly as you could interpret it,” said Kristine J. Feher, Florham Park, New Jersey-based shareholder with law firm Greenberg Traurig L.L.P. “That's why there's been some pushback.”

While employers would not find fault with most of the guidance, there is “no statutory basis” for the EEOC to address light duty requirements absent new laws or a decision by the Supreme Court, said Paul H. Kehoe, Washington-based senior counsel with Seyfarth Shaw L.L.P.

“The rules are controversial because although the PDA amended Title 7 of the Civil Rights Act, there is simply no basis to import reasonable accommodation requirements as the terms are understood under the Americans with Disabilities Act,” he said, noting that proposed federal legislation that would require reasonable accommodation, the Pregnant Workers Fairness Act, has thus far failed to pass in either chamber of Congress.

Mark J. Girouard, a Minneapolis-based shareholder in the labor and employment practice of law firm Nilan Johnson Lewis P.A., agreed that the updated guidance was overly broad.

“If anything, the fact that Congress thinks that the Pregnancy Discrimination Act needs to be amended to allow for accommodations for pregnant workers suggests that the law doesn't currently require that,” Mr. Girouard said. “It really undermines everything that the EEOC did here.”

Moreover, by extending the rules to include workers who have the potential to get pregnant, the EEOC was interpreting the statue too broadly, said Philip Voluck, Philadelphia-based managing partner with Kaufman Dolowich & Voluck L.L.P.

“An employee who says she wants to start a family or has the potential to become pregnant is now a protected category, according to the new guidelines,” he said. “It's stunning. This has to trigger an immediate surge in discrimination charges,” Mr. Voluck said.

Mr. Voluck also questioned the timing of the guidance.

“It's unprecedented that a federal regulatory agency issued guidelines only two weeks after the Supreme Court said it would be looking at the same issue,” he said.

Mr. Kehoe, who served as a special assistant to EEOC Commissioner Victoria A. Lipnic until September 2013, called the timing of the release questionable.

“Why did a majority of the EEOC commissioners seek to do this now?” he said. “It's clearly an attempt to get updated guidance out there and influence the Supreme Court.”

Ms. Feher said numerous laws being passed at the state level involving businesses' obligations to their pregnant workers may have influenced the EEOC's decision to update its guidance.

“It's a very timely issue,” Ms. Feher said. “New York and New Jersey have both recently adopted legislation that requires businesses to give reasonable accommodation to pregnant women, and more states are likely follow suit. So, I think the EEOC is trying to push the federal law more in line with what the states are doing.”

Mr. Girouard predicted the EEOC's expansive interpretation of the rules may not reconcile with the Supreme Court's eventual decision.

“The Supreme Court is likely to rule on this next summer or in the fall, and frankly this interpretation of the law flies in the face of what nearly every court that has considered the issue has concluded,” he said. “In addition, the courts have recently been viewing EEOC guidance in general much more skeptically than in the past.”

Still, Mr. Voluck said employers would be wise to abide by the EEOC guidance until the Supreme Court renders its decision.

“Try arguing with an EEOC investigator processing a pregnancy discrimination charge under the guidelines that their jurisdiction is invalid because the Supreme Court is taking up the case,” he said. “Good luck with that defense.”

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