Pregnancy-Related Disabilities

Mary Jo ONeillRegional AttorneyEEOCPhoenix District OFFICEJune 26, 2015

Pregnancy Discrimination and Related Issues

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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.

See National Womens 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.

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More Pregnant Women in the Workforce, contd1961-65: 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.

2009: 41 % of all births were to single women.

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Charges of Pregnancy Discrimination

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PDA: Extent of Coverage - Pregnancy, Childbirth, and Related Medical ConditionsCurrent Pregnancy

Past Pregnancy

Potential or Intended Pregnancy

UAW v. Johnson Controls, 499 U.S. 187 (1991) (the Court held that because reproductive potential did not prevent women from performing the duties of the positions involving actual or potential lead exposure, excluding women from the jobs on the basis of potential pregnancy violated Title VII).

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EEOC Strategic Enforcement Plan2013-2016 Identified six national priorities for integrated enforcement, using a range of strategies from among the EEOC's tools, including investigations, litigation, federal sector oversight and adjudication, policy development, research, and outreach and education, including:

Addressing Emerging and Developing Issues. Accommodating pregnancy-related limitations under the Americans with Disabilities Act Amendments Act (ADAAA) and the Pregnancy Discrimination Act (PDA)

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Legal FrameworkTitle VII of the Civil Rights Act of 1964Pregnancy Discrimination Act of 1978Family and Medical Leave Act of 1993ADA Amendments of 20082010 FLSA Nursing Breaks Amendment State and Local Laws

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Title VII as amended by the Pregnancy Discrimination Act (PDA)Title VII: a covered employer to discriminate against any individual with respect to ... terms, conditions, or privileges of employment, because of such individual's ... sex.

As Amended by the 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

Second Clause: women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes ... as other persons not so affected but similar in their ability or inability to work....

42 U.S.C. 2000e (k) (emphasis added).

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1979 SEX DISCRIMINATION GUIDELINES

Employment policies relating to pregnancy and childbirth [] An employer is required to treat an employee temporarily unable to perform the functions of her job because of her pregnancy-related condition in the same manner as it treats other temporarily disabled employees, whether by providing modified tasks, alternative assignments, disability leaves, leaves without pay, etc. [] If other employees temporarily unable to lift are relieved of [certain job] functions, pregnant employees also unable to lift must be temporarily relieved of [those] function[s.] 29 CFR 1604.10

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PDA Adverse Employment ActionsExamples: No Hire EEOC v. Subway (Ariz. 2012)Discharge EEOC v. Noodles Asian Bistro (Tenn. 2015)Involuntary Transfer EEOC v. Catholic Healthcare (Cal. 2008)Full Medical Clearance Requirement EEOC v. Britthaven (N.C. 2012)Harassment EEOC v. DTM (Md. 2011)

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PDA pregnancy-related medical leave: no forced leave, no increased restrictions on pregnancy-related medical leave, plus Young obligations

Note: Title VII sex discrimination parental leave must be provided to both parents on the same terms.

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PDA Prohibits Discrimination Based on Potential or Intended Pregnancy11Title VII prevents discrimination based on a workers capacity to become pregnant.Reproductive risk - Concerns about risks to the employee or her fetus will rarely, if ever, justify sex-specific restrictions for a woman with childbearing capacity.Intention to Become Pregnant Infertility Treatment Title VII may be implicated by exclusions of particular infertility treatments that apply only to one gender.Employers can violate Title VII by providing health insurance that excludes coverage of prescription contraceptives, whether they are prescribed for birth control or for medical purposes.

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Proving Disparate Impact12Proving disparate impact ordinarily requires a statistical showing that a specific employment practice has a discriminatory effect on workers in the protected group. The employer can prove business necessity by showing that the requirement is necessary to safe and efficient job performance.A violation may still be found if there was a less discriminatory alternative that meets the business need and the employer refuses to adopt it.

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PDA: Related Medical Conditions13Examples of PDA-covered related medical conditions:Complications requiring bed restGestational diabetesAfter-effects of C-sectionLactation EEOC v. Houston Funding, 2013 WL 2360114 (5th Cir. 2013)

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The PDAs 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

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Title VII and ADA: Workers with Caregiving Responsibilities15Disparate treatment of workers with caregiving responsibilities:Violates Title VII if based on sex, race, or national originViolates ADA if based on the workers association with a person with a disabilityEnforcement Guidance: Unlawful Disparate Treatment of Workers with Caregiving Responsibilities http://www.eeoc.gov/policy/docs/caregiving.html Employer Best Practices for Workers with Caregiving Responsibilities http://www.eeoc.gov/policy/docs/caregiver-best-practices.html

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Leave

No special medical clearance proceduresMust be permitted to work as long as they are able to perform their jobsMay not be prohibited from returning to work for a predetermined length of time after childbirthEqual access to leave, including disability leaveJob-protection after a pregnancy-related absenceParental leave to bond with and care for a child must be provided to men and women on equal terms

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Health Insurance and Other BenefitsHealth insurance provided by an employer must cover expenses for pregnancy, childbirth, and related medical conditions.An employers health insurance plan must cover prescription contraceptives on the same basis as prescription drugs for other conditions, but see Hobby Lobby (S. Ct. 2014).Employees with pregnancy related disabilities must be treated the same as other temporarily disabled employees for accrual and crediting of seniority, vacation calculation, pay increases, etc.

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PDA: Light Duty18An employer must provide light duty for a pregnant worker if it provides light duty for employees who are not pregnant, but who are similar in their ability or inability to work.Guidance sets out three ways of proving pregnancy discrimination with respect to denial of light duty:Direct evidenceMcDonnell Douglas plus burden-shifting approachDisparate Impact

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PDA: Light Duty (cont.)19Direct evidence: there may be statements from a decision-maker, such as a statement that a pregnant worker would pose too much of a risk, that accompany denial of light duty (see Example 9 in the Guidance).Where this is there is direct evidence, no comparator evidence is necessary.

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PDA: Light Duty, contd20Proof of Discrimination Through McDonnell Douglas Burden-Shifting Framework: Prima Facie Case pregnant worker shows that a similarly situated non-pregnant worker has been given light duty.Legitimate Nondiscriminatory Reason by Employer.Employers may not fail to accommodate pregnant workers based on considerations of cost or convenience when they accommodate other workers. Policies that significantly burden pregnant employees and that cannot be supported by a sufficiently strong nondiscriminatory reason can raise an inference of intentional discrimination .

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Peggy Young and her daughter

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Young v. UPS: FactsPeggy Young worked for UPS as a part-time early-morning driver picking up and delivering packages that had arrived by air carrier the night before.The job description required air drivers like Young to be able to lift, lower, push, pull, leverage and manipulate items weighing up to 70 pounds.In 2006, Young took a leave of absence to undergo in vitro fertilization, which was successful.

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Facts cont.Before returning to work, Young provided her supervisor with a physicians note stating that she should not lift more than 20 pounds for the first 20 weeks of her pregnancy and not more than 10 pounds for the remainder of the pregnancy.

Because of the high cost of air delivery, Young rarely had to lift more than 20 lbs. She requested either a light duty slot or to do her regular job.

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UPSs PolicyUPS offered light-duty work assignments to:

Employees injured on-the-jobEmployees needing ADA accommodationsDrivers who had lost their DOT certification because of a failed medical exam, a lost drivers license, or involvement in a motor vehicle accident

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Facts Cont.Youngs supervisor informed her that UPS policy would not allow her to return to work while she had a 20-pound lifting restriction.

Youngs Division Manager told her that she was too much of a liability while pregnant and that she could not return to work at UPS until she was no longer pregnant. NOTE: this is an example of direct evidence as stated in our Guidance.

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More Young v. UPS FactsYoung used her acquired leave and then took an extended leave of absence without pay.

She lost her medical coverage.

She returned to work for UPS after giving birth in April 2007.

She filed a charge with the EEOC in July 2007.

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Young v. United Parcel Service, Inc., 135 S. Ct. 138 (March 25, 2015)

Facts: Employers 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: 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 under the second clause.Question in Young was limited to the scope of the PDA, not the ADA.

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SCT heard argumentWednesday, December 3, 2014Interesting argumentRead Transcript

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Young v. UPS, contdHELD:The Court rejected a broad, literal interpretation of the PDAs second clause.The Court also rejected UPSs 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 for determining if the PDAs second clause has been violated.

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Young v. UPS, contdPDA McDonnell Douglas AnalysisPlaintiff 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.30

Young v. UPS, contdAn 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 employers articulated reason is pretextual by providing sufficient evidence that the employers policies significantly burden pregnant employees and that its legitimate, nondiscriminatory reasons are not sufficiently strong to justify the burden.

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ImplicationsThe Courts decision overturns a portion of the July 2014 EEOC Enforcement Guidance analysis on light duty in the Equal Access to Benefits section. The Guidance has been revised to eliminate the portion that sets forth the plain meaning approach to the second clause of the PDA. June 25, 2015.The second portion of the Guidance, which includes a version of the McDonnell Douglas approach that is similar to that announced by the Court, will remain and has been revised to include some more specific points made by the Court as relevant to this line of analysis. No revisions to the rest of the Guidance were necessary.See http://www.eeoc.gov/laws/guidance/enforcement_guidance.cfm.

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ImplicationsIt is now clear that plaintiffs in PDA cases will be able to establish a prima facie case of discrimination by identifying any employee who is similar in his or her ability or inability to work and who is provided with light duty, a reasonable accommodation under the ADA, or another workplace benefit, and that employers may not fail to accommodate pregnant workers based on considerations of cost or convenience when they accommodate other workers.

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ImplicationsThe Courts conclusion that policies that significantly burden pregnant employees and that cannot be supported by a sufficiently strong nondiscriminatory reason can raise an inference of intentional discrimination will allow many cases to be decided by a jury, rather than dismissed on summary judgment as would routinely have been the case if the Fourth Circuits decision had been upheld.

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ImplicationsPolicies that limit light duty based on the source of an employees inability to work will not necessarily violate the PDA, but will be assessed in terms of the burdens they place on pregnant workers and the employers justification for the policy. The more pregnant workers who are excluded from light duty by such a policy relative to non-pregnant workers, the more likely it is the policy will be found to have a significant burden on pregnant employees.

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ImplicationsThe Court acknowledged that the ADA Amendments Acts expansion of the definition of disability may assist many women with pregnancy-related impairments because of the inclusion of temporary impairments under the ADA Amendments Act. The Court refrained from opining on the ADA, other than to note that it may make the protections of the PDA less necessary for some pregnant workers.

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Pregnancy and the ADAAA37

Pregnancy itself is not an impairment within the meaning of the ADA, and is thus never on its own a disability.However, some pregnant workers may have impairments related to their pregnancies that qualify as disabilities under the ADA.The ADA was amended in 2008 by the ADA Amendments Act (ADAAA) to make it easier for individuals to show they have disabilities.

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ADA: Pregnancy-Related Impairments that May Be Substantially Limiting38

Examples:Pelvic inflammation may substantially limit walkingPregnancy-related carpal tunnel syndrome may substantially limit liftingDisorders of uterus or cervix may substantially limit reproductive functionPregnancy-related sciatica may substantially limit musculoskeletal functionGestational diabetes may substantially limit endocrine functionPreeclampsia may substantially limit cardiovascular or circulatory functions

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Common Accommodations for Pregnancy-Related Limitations39Modification of job duties, such as provision of light duty or redistribution of marginal functionsModification of work hoursRelocation to a different work areaMore frequent breaksModification of policies permission to use a stool while on duty or to drink from a water bottleAdditional leaveTelework

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Best PracticesDevelop ADA/ PDA policies.Think about the policies.Parental leave.Training.Surveys.Respond to complaints.Focus on qualifications in personnel decisions.Access to light duty.Have processes for Reasonable Accommodation Requests, including temporary impairments.Think about the ADA and the PDA!If you have light duty, dont discriminate implementing it.Be open and creative about accommodations.

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