Pregnancy Discrimination Issues under Title VII and the Rehabilitation Act U.S. Equal Employment Opportunity Commission Federally Employed Women National Training Program July 15, 2015

Pregnancy Issues and the Strategic Enforcement Plan One of the six national priorities identified in Strategic Enforcement Plan (SEP) is litigating “emerging or developing issues” One such “emerging or developing issue” is “accommodating pregnancy-related limitations under the Americans with Disabilities Act Amendments Act (ADAAA) and the Pregnancy Discrimination Act” (SEP, Part III.B.3)

EEOC History on Issues Relating to Pregnancy, Disability, and Caregiver Discrimination Guidelines on Discrimination Because of Sex (1979): http://www.gpo.gov/fdsys/pkg/CFR-2011-title29-vol4/xml/CFR-2011-title29-vol4-part1604.xml Fact Sheet: The Family and Medical Leave Act, the Americans with Disabilities Act, and Title VII of the Civil Rights Act of 1964 (1995): http://www.eeoc.gov/policy/docs/fmlaada.html Enforcement Guidance: Unlawful Disparate Treatment of Workers With Caregiving Responsibilities (2007): http://www.eeoc.gov/policy/docs/caregiving.html Regulations to implement the ADAAA (2011): 29 C.F.R. § 1630 Commission Meeting on Unlawful Discrimination Against Pregnant Workers and Workers With Caregiving Responsibilities (2012): http://www.eeoc.gov/eeoc/meetings/2-15-12/index.cfm

More Pregnant Women in the Workforce Today, women comprise half of the workforce and increasingly continue to work while pregnant, often through later stages of pregnancy. 1961-65: 44% of first-time mothers worked during pregnancy, and 13% of them stopped work during their first trimester. Compare to 2006-08: 66% of first-time mothers worked during pregnancy, and only 6% of them stopped work during their first trimester. 1961-65: 35% of first-time mothers who worked during pregnancy worked into their final month. Compare to 2006-08: 82% of first-time mothers who worked during pregnancy worked into their final month. 1970: Mean age at first birth was 21.4. Compare to 2007: Mean age at first birth was 25. See National Women’s Law Center, Fact Sheet: The Pregnant Workers Fairness Act: Making Room for Pregnancy on the Job (June 2013), available at http://www.nwlc.org/sites/default/files/pdfs/pregnantworkersfairnessfactsheet_w_bill_number.pdf; U.S. Census Bureau, Maternity Leave and Employment Patterns of First-Time Mothers 1961-2008, 4, 6 (Oct. 2011), available at http://www.census.gov/prod/2011pubs/p70-128.pdf.

I. Title VII: The Pregnancy Discrimination Act (PDA) First clause: “The terms ‘because of sex’ or ‘on the basis of sex’ include, but are not limited to, because of or on the basis of pregnancy, childbirth, or related medical conditions”; and 42 U.S.C. § 2000e (k) (emphasis added).

PDA: “Adverse Employment Actions” Examples: No hire Termination Demotion Failure to promote Failure to transfer Doe v. DOJ, U.S. Marshals Serv., EEOC Appeal No. 0720090006 Harassment Harris v. Soc. Sec. Admin., EEOC Appeal No. 0120121157

PDA: Extent of Coverage - “Pregnancy, Childbirth, and Related Medical Conditions” “The PDA gives a woman the right . . . to be financially and legally protected before, during, and after her pregnancy.” Leg. History of the PDA Current Pregnancy Past Pregnancy Enforcement Guidance: Unlawful Disparate Treatment of Workers with Caregiving Responsibilities http://www.eeoc.gov/policy/docs/caregiving.html Potential or Intended Pregnancy UAW v. Johnson Controls, 499 U.S. 187 (1991)

PDA: “Related Medical Conditions” Examples of “related medical conditions”: Complications requiring bed rest Gestational diabetes After-effects of C-section Lactation – EEOC v. Houston Funding, 2013 WL 2360114 (5th Cir. 2013)

The PDA’s Second Clause “[W]omen affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes, including receipt of benefits under fringe benefit programs, as other persons not so affected but similar in their ability or inability to work, and nothing in section 703(h) of this title shall be interpreted to permit otherwise. . . .” Examples of such benefits: “light duty,” leave, health insurance

Young v. United Parcel Service, Inc. , --- S. Ct Young v. United Parcel Service, Inc., --- S. Ct. ---, 2015 WL 1310745, U.S., March 25, 2015 (no. 12-1226). Facts: Employer’s light duty policy was limited to individuals injured on the job, those with disabilities, and those who lost Department of Transportation certification to drive commercial motor vehicles. Issue in Young v. UPS: Whether, and in what circumstances, an employer that provides work accommodations to non-pregnant employees with work limitations is required under the PDA to provide comparable work accommodations to pregnant employees who are “similar in their ability or inability to work.” Question in Young was limited to the scope of the PDA, not the ADA.

Young v. UPS, cont’d HELD: The Court rejected a broad, literal interpretation of the PDA’s second clause. The Court also rejected UPS’s interpretation of the second clause as only serving to clarify that discrimination on the basis of pregnancy is sex discrimination. The Court adopted a version of the familiar McDonnell Douglas burden-shifting analysis in disparate treatment cases.

Young v. UPS, cont’d PDA McDonnell Douglas Analysis Plaintiff who claims she was treated less favorably than other employees who are similar in their ability or inability to work can establish a prima facie case by showing that 1) she is a member of a protected class; (2) she sought “accommodation”; (3) the employer did not accommodate her; and (4) the employer accommodated other employees similar in their ability or inability to work. An employer may then articulate a legitimate, nondiscriminatory reason for the different treatment. However, “that reason normally cannot consist simply of a claim that it is more expensive or less convenient to add pregnant women to the category of those . . . whom the employer accommodates.” Finally, a plaintiff may show that the employer’s articulated reason is pretextual by providing sufficient evidence that the employer’s policies “significantly burden” pregnant employees and that its “legitimate, nondiscriminatory reasons” are not “sufficiently strong” to justify the burden.

EEOC’s Updated Guidance on Pregnancy Discrimination (June 2015) In response to the Supreme Court’s decision in Young, the Commission updated parts of its Enforcement Guidance on Pregnancy Discrimination and Related Issues. http://www.eeoc.gov/laws/guidance/pregnancy_guidance.cfm The updated pages explain that under Young:  employer light duty policies that do not explicitly exclude pregnant employees may still violate the PDA if they impose significant burdens on pregnant employees that cannot be supported by a sufficiently strong justification; and evidence of an employer policy or practice of providing light duty to a large percentage of nonpregnant employees while failing to provide light duty to a large percentage of pregnant workers might establish that the policy or practice significantly burdens pregnant workers.   The bulk of the Enforcement Guidance, first issued in 2014, remains unaffected by the decision in Young.

PDA: Leave Pregnancy-Related Medical Leave Parental Leave No forced leave No increased restrictions on pregnancy-related medical leave Parental Leave Must be provided to mothers and fathers on the same terms.

PDA: Health Insurance Employers who provide health insurance must include coverage of pregnancy, childbirth, and related medical conditions Health insurance that excludes coverage of prescription contraceptives may violate the PDA http://www.eeoc.gov/policy/docs/decision-contraception.html

II. Pregnancy and the Rehabilitation Act EEOC regulations still make a distinction between “normal” pregnancies and those with complications. See EEOC’s Questions and Answers on the Final Rule Implementing the Amended ADA, at Question 23, available at http://www.eeoc.gov/laws/regulations/ada_qa_final_rule.cfm Generally, under the ADAAA/Rehab Act expanded rules of construction and definitions, many more pregnancy-related conditions now may qualify as “physical impairments” supporting “actual disability” and “record of such disability” claims. For example, someone with an impairment resulting in a 20-pound lifting restriction that lasts or is expected to last for several months is substantially limited in the major life activity of lifting.

Pregnancy and the Rehab Act: New Rules of Construction Major life activities also include bodily functions, including but not limited to, functions of the cardiovascular, respiratory, circulatory, endocrine, and reproductive and musculoskeletal functions. “Substantially limits” significantly expanded -- 29 C.F.R. §1630.2(j)(1) (2011) (“An impairment need not prevent, or significantly or severely restrict, the individual from performing a major life activity in order to be considered substantially limiting.”) Exception for transitory conditions no longer applies for “actual disability” – 42 U.S.C. §12102 (2013)

Rehab Act: Pregnancy-Related Impairments that May Be Substantially Limiting Examples: Pelvic inflammation – may substantially limit walking Pregnancy-related carpal tunnel – may substantially limit lifting Disorders of uterus or cervix – may substantially limit reproductive function Pregnancy-related sciatica – may substantially limit musculoskeletal function Gestational diabetes – may substantially limit endocrine function Preeclampsia – may substantially limit cardiovascular or circulatory functions

Pregnancy-Related Impairments That Are Substantially Limiting Mayorga v. Alorica, Inc., 2012 WL 3043021 (S.D. Fla. July 25, 2012) Plaintiff had a high-risk pregnancy where baby was in breech position throughout, resulting in, inter alia, premature contractions; increased heart rate; severe morning sickness, back pain, and lower abdominal pain; and three emergency room visits. Held: While healthy pregnancies are not covered under ADA, pregnancy-related complications may be disabilities if they are severe or long enough in duration. Motion to dismiss denied and plaintiff directed to file amended complaint alleging specific major life activities which were substantially limited.

Common Accommodations for Pregnancy-Related Limitations Modification of job duties, such as provision of “light duty” or redistribution of marginal functions Modification of work hours Relocation to a different work area More frequent breaks Modification of policies – permission to use a stool while on duty or to drink from a water bottle Additional leave

Other Avenues to Accommodation Some state and local laws require some degree of accommodation of pregnancy, including: - Alaska - Illinois - Maryland - Delaware - California - Minnesota - New Jersey - District of Columbia - Connecticut - Texas - West Virginia - Philadelphia - Hawaii - Louisiana - New York City Pregnant Workers Fairness Act, S. 942, 113th Cong. (2013), available at http://www.govtrack.us/congress/bills/113/s942

Best Practices Protect applicants and employees against retaliation. Make hiring, promotion, and other employment decisions without regard to stereotypes about pregnant workers. Review light duty policies for compliance with the PDA. Ensure that anyone designated to handle reasonable accommodation requests is aware of new rules of construction under the Rehab Act.