While most of the Guidance focuses on expanding the rights of pregnant employees, it also provides employers with a few footholds for proving their compliance. Some of the examples of compliant behavior in the PDA and ADA sections may provide employers with arguments that their decisions are permissible, or at the least should not be the subject of EEOC actions against them. Either way, the Guidance does not carry the formal authority of regulations, so courts are free to reject portions of the Guidance. Practical Steps to Respond The EEOC provides a long list of Best Practices for compliance, and employers concerned about compliance should consider following at least some of these. The most important steps are: Review anti-discrimination, benefits, leave of absence, light duty, and accommodation policies to make necessary changes to ensure they are compliant with the law. Train managers and human resources professionals on rights and responsibilities under the PDA, the ADA, and other statutes that bear on pregnancy, and specifically on the duty to accommodate restrictions related to pregnancy, childbirth, or lactation.
The training program is open to NIH employees and to all users of CIT computing facilities. Most courses are free of charge. Remote class attendance can be arranged for students in locations outside the Metro DC area.
The Guidance incorporates the concepts of "reasonable accommodation" and "undue hardship" into the analysis of an accommodation request. It also provides several examples of what the EEOC considers reasonable accommodations for restrictions arising out of pregnancy. The ADA requires accommodation of pregnancy-related disabilities, regardless of their relationship to a healthy and routine pregnancy. The assertion that "an impairment's cause is not relevant in determining whether the impairment is a disability" could nullify the provision of the ADA regulations stating that pregnancy is not an impairment. Thus, following this approach, conditions present to some degree in most pregnancies, such as balance issues, morning sickness, and changes in body size, could qualify for accommodations under the ADA. The PDA requires accommodations for pregnant women where non-pregnant similarly abled or disabled individuals have received accommodations, regardless of whether the accommodations result from laws like the ADA, a policy that prioritizes workplace injuries over other physical limitations, or an employer's choice free from any legal obligations on the matter.
Unreasonable Modifications Examples of modifications or adjustments that typically are not considered reasonable accommodations include eliminating an essential job function; lowering production standards (although an employer may have to provide a reasonable accommodation to enable an employee with a disability to meet the production standard); and providing personal-use items needed to perform daily activities both on and off the job, such as a prosthetic limb, a wheelchair, eyeglasses, hearing aids or similar devices if they are also needed off the job. Conflicts with Seniority System The revised guidance also reflects the U. Supreme Court's holding that it is unreasonable to reassign an employee with a disability if doing so would violate the seniority system's rules. This is true whether the seniority system is collectively bargained or management imposed. But, says the EEOC, it may be reasonable to reassign an employee in violation of a seniority system if there are special circumstances that undermine employees' expectations of consistent, uniform treatment under the seniority system.
This Guidance examines what "reasonable accommodation" means and who is entitled to receive it. The Guidance addresses what constitutes a request for reasonable accommodation, the form and substance of the request, and an employer's ability to ask questions and seek documentation after a request has been made. Policy Guidance on Executive Order 13164 Code of Federal Regulation 29 CFR 29 1630 - Regulations to Implement the Equal Employment Provisions of the Americans with Disabilities Act CFR 29 1614. 203 - Regulations to Implement the Equal Employment Provisions of the Rehabilitation Act Rehabilitation Act of 1973 (Rehab Act), as amended Review of Sections: 501, 503, 504, and 508 The Rehabilitation Act prohibits discrimination on the basis of disability in programs conducted by Federal agencies, in programs receiving Federal financial assistance, in Federal employment, and in the employment practices of Federal contractors. Training CIT Computer Training Program - Section 508 Accessibility Training The Technology Training Program offers information technology courses and seminars that enable users to make efficient and effective use of computers, networks, and information systems in their work at NIH.
Implications for Employers The immediate impact of the Guidance will be more aggressive enforcement of the PDA and more ADA/PDA cross-over cases. The courts are likely to give judicial deference to the Guidance, so it will affect the direction of future case law. Several of the Guidance's assertions will substantially change employers' obligations if accepted by courts. Earlier cases accepted the argument that employees receiving their accommodations under laws other than the PDA are not appropriate comparators for plaintiffs suing under the PDA. The EEOC's Guidance does not agree. Thus, accommodation may be under the PDA so long as accommodation is required for a comparator under the ADA, possibly even where the ADA comparator is merely hypothetical. The Guidance also disagrees with the permissibility of workplace policies that provide special treatment to injuries sustained in the workplace but deny those accommodations to pregnant women. A case that will be decided by the U. S. Supreme Court, Young v. United Parcel Services, Inc., will likely shed further light on these arguments.
Here are some examples the agency cited of accommodations that are considered reasonable: Providing a stool for a cashier who easily becomes fatigued because of lupus is reasonable because it removes a workplace requirement to stand when the job can be performed just as effectively sitting down. This accommodation is effective because it addresses the employee's fatigue and enables the person to perform their job. In case of a cleaning crew member whose psychiatric disability makes it difficult to adjust to changes in routine, excusing the person from having to participate in the crew's monthly rotation to different floors of the building is a reasonable way to handle the employee's problem. It is also effective because it enables the employee to perform his cleaning duties. Other examples of reasonable accommodations include making existing facilities accessible; job restructuring; part-time or modified work schedules; acquiring or modifying equipment; changing tests, training materials or policies; providing qualified readers or interpreters; and reassignment to a vacant position.
Focus on qualifications in employment decisions rather than planned pregnancy, pregnancy, recent pregnancy, or caregiver status. Take pregnancy discrimination complaints very seriously and protect employees who complain from retaliation. Make sure the business reasons for employment actions are well documented. Disclose information about fetal hazards to applicants and employees and accommodate any requests for reassignments to the extent feasible. Margaret Hart Edwards is a Shareholder, and Danielle Fuschetti is an Associate, in Littler's San Francisco Office. If you would like further information, please contact your Littler attorney at ttler or, Ms. Edwards at or Ms. Fuschetti at. The Guidance can be accessed here. Those interested in reading more about the Guidance are encouraged to visit Littler's Workplace Policy Institute article on the subject.
On July 14, 2014, the EEOC issued its long-anticipated Enforcement Guidance on Pregnancy Discrimination and Related Issues (the Guidance), which, according to Commissioner Lipnic, "adopts new and dramatic substantive changes to the law" regarding workplace treatment of pregnancy. Employers must become aware of the Guidance, as it not only explains the EEOC's understanding of the law and how it will seek to enforce it, but also attempts to expand the law to provide greatly enhanced protections to pregnant employees. The Guidance The Guidance covers the vast expanse of federal workplace laws touching on pregnancy and related conditions, including the Pregnancy Discrimination Act (PDA), the Americans with Disabilities Act (ADA), the Genetic Information Nondiscrimination Act (GINA), the Affordable Care Act (ACA), the Family and Medical Leave Act (FMLA), and Executive Order 13152, which prohibits discrimination in federal employment based on parental status. The Guidance is intended to provide a definitive document on the EEOC's position on pregnancy.