On July 14, 2014, the Equal Employment Opportunity Commission (“EEOC”) issued new guidance on its interpretation and application of the Pregnancy Discrimination Act (“PDA”). Amongst other things, the EEOC’s guidelines relate to an employer’s obligation to provide reasonable accommodations to pregnant employees. The PDA was a 1978 amendment to Title VII of the Civil Rights Act and prohibits employers from discriminating against employees due to their past pregnancy, current pregnancy, intended or anticipated pregnancy, and/or pregnancy-related medical conditions.
The EEOC’s July 2014 guidelines have not been without controversy. First, the EEOC’s guidelines were criticized as an unwarranted change in the PDA’s interpretation and application regarding providing reasonable accommodations to pregnant employees. The primary criticism was that the EEOC’s guidelines incorporated aspects of the Americans with Disabilities Act (“ADA”) to explain and support its position that employers must provide reasonable accommodations to employees who are pregnant or have pregnancy-related medical conditions. In other words, although the ADA’s definition of “disability” does not necessarily include pregnancy, the new EEOC guidelines essentially provide that pregnancy must be treated the same as a disability under the ADA. Diverging from federal case law interpreting the PDA and ADA, the EEOC’s guidelines state:
A pregnant employee may be entitled to reasonable accommodation under the ADA for limitations resulting from pregnancy-related conditions that constitute a disability or for limitations resulting from the interaction of the pregnancy with an underlying impairment. A reasonable accommodation is a change in the workplace or in the way things are customarily done that enables an individual with a disability to apply for a job, perform a job’s essential functions, or enjoy equal benefits and privileges of employment. An employer may only deny a reasonable accommodation to an employee with a disability if it would result in an undue hardship. An undue hardship is defined as an action requiring significant difficulty or expense.
See, EEOC, 915.003, Enforcement Guidance: Pregnancy Discrimination and Related Issues (2014).
The EEOC guidelines then go on to list examples of reasonable accommodations, including but not limited to redistributing any non-essential functions the pregnant employee cannot perform to other employees, modifying workplace policies and/or equipment, altering how certain functions are performed, or providing the pregnant employee temporary light-duty assignments.
Second, the EEOC’s guidelines have also been criticized due to their timing, as they were issued just two weeks after the U.S. Supreme Court agreed to hear the case of Young v. UPS. The central issue in Young was an employer’s duty to accommodate its employees under the PDA. Commentators are criticizing the EEOC for issuing its statement when the nation’s highest court appears ready to resolve these PDA issues in the near future, and, depending on the Supreme Court’s ruling, the EEOC’s guidelines could potentially be rendered irrelevant.
In Young, the plaintiff, a pregnant UPS driver, sued UPS after her request for light-duty work was denied pursuant to UPS’s internal policy that only employees who have job-related injuries, who have ADA-qualifying disabilities, or who have lost their DOT certification can receive temporary light-duty assignments. Pregnant employees, on the other hand, did not qualify for light-duty if their limitations arose solely from their pregnancy. In essence, the Young plaintiff, much like the EEOC’s July 2014 guidelines, argued that pregnant employees should receive the same benefits and accommodations as employees under the ADA. The 4th Circuit Court of Appeals rejected the Young plaintiff’s argument for two reasons. First, UPS’s criteria for receiving light-duty assignments are “pregnancy-blind;” therefore, it did not, and could not, discriminate on the basis of pregnancy. Second, the Court concluded that the PDA, as enacted by Congress, was intended only as an anti-discrimination statute, not as a requirement to provide accommodation to pregnant employees or to give pregnant employees preferential treatment. In sum, the Court concluded that the PDA does not include an obligation to provide reasonable accommodations.
That issue is now before the U.S. Supreme Court, who will have the final ruling on whether the 4th Circuit’s analysis is correct. Until that happens, however, employers should review the EEOC’s July 14, 2014 guidelines as well as their own internal policies to ensure they are complying with the EEOC’s interpretation of the PDA, including reviewing the “Best Practices” section in the EEOC’s guidelines. Additionally, employers should remain wary of denying a pregnant employee light-duty or other reasonable accommodations until the ambiguity is resolved.
Although the issue of pregnancy-related accommodations is unclear at the federal level, the Illinois legislature has squarely resolved this issue in favor of employees. Illinois recently passed legislation, effective January 1, 2015, which sets forth employment laws similar to the EEOC’s July 2014 guidance. The law, Public Act 098-1050, amends the Illinois Human Rights Act (“IHRA”) to provide that it is a civil rights violation for an employer to refuse reasonable accommodations to an employee for pregnancy or pregnancy-related conditions unless such accommodations would qualify as an undue hardship on the employer’s ordinary business. Additionally, the amendment to IHRA provides than an employer violates the IHRA by taking any of the following actions with respect to an employee who is pregnant or suffers from pregnancy-related conditions: (1) denying employment opportunities, benefits, or taking adverse action against an otherwise qualified job applicant or employee; (2) requiring a job applicant or employee to accept an accommodation that the applicant or employee did not request and chooses not to accept; or (3) requiring an employee to take leave under any leave law or policy if another reasonable accommodation can be provided.
The IHRA amendment clarifies that an employer is not required to create additional positions it otherwise would not have created. That said, an employer still violates the IHRA if it has or would create additional positions for non-pregnant employees who request such accommodation. The IHRA amendment also provides that an employer may request documentation from the employee’s healthcare provider regarding the necessity of the requested accommodation, but the amendment also limits the extent of the information an employer can request. Finally, the amendment also mandates: “The employee and employer shall engage in a timely, good faith, and meaningful exchange to determine effective reasonable accommodations.” See, EEOC, 915.003, Enforcement Guidance: Pregnancy Discrimination and Related Issues (2014).
Given now effective changes in Illinois law, Illinois employers should review carefully the amendments to the IHRA, analyze and revise their own internal policies to ensure compliance, determine whether positions were created for non-pregnant but otherwise disabled workers in the past, and, if a pregnant employee or qualified job applicant requests such accommodations, make sure that a meeting is held between the decision-makers and employee with the employee’s medical documentation and recommendations available. The attorneys at Rock Fusco & Connelly, LLC, can assist businesses in interpreting the new rules and reviewing existing policies to ensure compliance. Adapting to these regulations early, before a potential lawsuit develops, can save a business significant sums in terms of avoiding costly discrimination litigation.