On July 14, 2014, the U.S. Equal Employment Opportunity Commission (EEOC) issued new and controversial Enforcement Guidance on the subject of pregnancy discrimination.  The text of the EEOC’s Enforcement Guidance is available at: http://www.eeoc.gov/laws/guidance/pregnancy_guidance.cfm.  This sweeping new Guidance, the first guidance for employers on the subject issued by the EEOC since 1983, describes in detail how the EEOC views pregnancy and pregnancy-related conditions, and what the EEOC will consider when investigating pregnancy discrimination complaints and in enforcing the law.

This Guidance is also controversial.  Two EEOC Commissioners actually opposed aspects of the new Guidance, noting that it contained statements that overstepped existing legal authority and went beyond the existing law. 

Some Background on the PDA

The Pregnancy Discrimination Act (PDA) applies to employers with 15 or more employees.  It has been in place since 1978 and amended Title VII of the Civil Rights Act of 1964.  The PDA prohibits discrimination based on:

• Current pregnancy,
• Past pregnancy,
• Potential pregnancy,
• Intended pregnancy, and
• Medical conditions related to pregnancy or childbirth. 

These prohibitions cover virtually all aspects of employment, including: hiring, discipline, firing, leaves of absence, benefits, promotions, and demotions.  (Note:  Smaller employers are usually covered under state non-discrimination laws that contain similar protections).    

Summary of the Guidance

Among other things, the Guidance discusses the interplay of the PDA with the 2008 amendments to the Americans with Disabilities Act (ADA).  It also describes “best practices” for employers to follow.  There are many helpful examples of common employee situations involving pregnancy and how and why the law applies or does not apply in that situation.  A key point in the Guidance -- the EEOC states that employers who provide “light duty” only to those employees with work-related injuries and not to pregnant employees violate the PDA.  

The bottom line in this Guidance is fairness.  It reminds employers to treat women affected by pregnancy, childbirth, or related medical conditions in the same manner as other employees or applicants who are not affected by pregnancy-related conditions, but who are similar in their ability or inability to work.  Additionally, supervisors should not engage in stereotypes or other improper assumptions about pregnant employees, such as assuming that pregnant employees will need more sick time, that pregnancy alone automatically creates physical limitations on lifting and performing physical activity, or that the pregnant employee cannot perform physical activities because of potential harm to the unborn baby (which, on that last point, the U.S. Supreme Court many years ago said is none of an employer’s business).      

How  EMS Employers Can Comply With the Guidance

Here are some tips for EMS employers:

• Don’t assume that a pregnant employee requires restrictions on physical activity essential to her position as an EMT or paramedic (or any other position within your organization) unless and until she tells you that she needs an accommodation or light duty or you have objective information that the employee is having difficulty meeting the physical requirements of the job.  Many pregnant women have worked on the street as EMTs and paramedics all the way through their pregnancy.
• If a pregnant employee comes to you and advises you that her doctor wants her to have a light duty position, you are obligated to treat her the same as you would treat any other employee who requests light duty.  This means that if you provide employees who have work-related injuries with light duty, then you must also provide pregnant employees with light duty if they request it.  (In other words, policies limiting light duty to those with work-related injuries should be updated to include non-work related conditions).  An employer is obligated to treat a pregnant employee temporarily unable to perform the functions of her job the same as it treats other employees similarly unable to perform their jobs, whether by providing modified tasks, alternative assignments, leave, or fringe benefits. 
• Don’t refuse to hire or promote an employee because she is pregnant, and don’t fire, demote, or transfer a woman to a less desirable position because she is pregnant or needs time to pump breast milk. (Federal law under the Affordable Care Act now requires most employers to provide reasonable break time and a private place for hourly employees who are breastfeeding to express milk).  Keep in mind that an employer will be found to have discriminated on the basis of pregnancy if an employee’s pregnancy, childbirth, or related medical condition was “all or part of” the motivation for an employment decision.

The timing of this new Guidance is curious, since, on July 1, 2014, the U.S. Supreme court granted certiorari in Young v. United Parcel Service, Inc., a case that deals with many of the same issues addressed by this Guidance. At issue in this case is whether UPS violated the PDA in its treatment of Young, a delivery driver who said she was required to go on unpaid leave, rather than get a position that was less strenuous.  The lower courts ruled in UPS’s favor, indicating that UPS’s policies were “pregnancy-neutral,” and governed by a collective bargaining agreement.  But, there is still a possibility that the Supreme Court’s decision in the Young case may supersede this EEOC Guidance in whole or in part.

In the meantime, it is essential for employers to review their current pregnancy, discrimination, hiring, leave, disability, benefits, and related policies and practices, and evaluate with their legal counsel whether they need to be updated in light of this Guidance.  Training of leadership personnel and employees on those policies and what is and what is not appropriate conduct in the workplace is also a must.  From a risk management standpoint, it is also important to ensure that any situation involving a pregnant employee is treated in accordance with the law, and in conformance with this new Guidance. 

Please contact PWW with any questions that you have about this new EEOC Guidance or in dealing with discrimination issues in the workplace.  Click HERE to learn more about the Professional Services we offer in labor and employment law.  PWW attorneys provide on-site training for leadership and staff on a wide range of workplace issues.  We conduct assessments of EMS workplace practices and provide recommendations and policies to keep up with the ever-changing employment landscape