By Andrew W. McLaughlin
On July 14, the Equal Employment Opportunity Commission issued new enforcement guidance for pregnancy discrimination. The guidance addressed a number of pregnancy-related employment issues, including when an employer is obligated to offer light duty to pregnant employees. Under the Pregnancy Discrimination Act (PDA), employers must treat pregnant employees the same “as other persons not so affected but similar in their ability or inability to work.” 42 U.S.C. § 2000e(k). Generally, if an employer provides light duty to other disabled employees, the employer must provide light duty to pregnant employees. Employers that offer light duty may place reasonable restrictions on the light duty, such as limits on the number of light-duty positions or the duration of light-duty assignments so long as the restrictions are equally applied to both pregnant and non-pregnant employees.
The law is unsettled on whether employers that only offer light duty to employees injured on the job must also offer light duty to pregnant employees who require it, even if the employer does not offer light duty to employees with non-job-related injuries.
In its July 14 enforcement guidance, the EEOC takes the position that if an employer offers light duty to any other employee, it must similarly offer light duty to pregnant employees on the same terms. The guidance states that a policy that distinguishes between pregnant and non-pregnant workers who are similar in their ability or inability to work based on the cause of the employee’s limitation violates the PDA. The EEOC also suggests in the enforcement guidance that policies limiting light duty to employees injured on the job may have an adverse impact against pregnant employees and women.
The EEOC’s position in its enforcement guidance is contrary to Eleventh Circuit precedent, which has held that employees injured on the job may be treated differently from employees with non-work-related conditions including pregnancy. See Spivey v. Beverly Enters., Inc., 196 F.3d 1309, 1313 (11th Cir. 1999), Abbott v. Elwood Staffing Servs., 2014 U.S. Dist. 2014 WL 3809808 (N.D. Ala. July 31, 2014). The Fourth, Fifth, Seventh, and Eighth Circuits follow the Eleventh Circuit. The Sixth and Tenth Circuit follow the position in the EEOC guidance.
The Supreme Court will address the circuit split on this issue when it reviews the Fourth Circuit’s ruling in Young v. UPS, 707 F.3d 437 (4th Cir. 2013). In Young, which involved an employee challenging the light-duty policies, UPS offered light duty for individuals with workplace injuries but did not offer light duty to individuals with non-work-related injuries or physical conditions, including pregnancy. The district court held that UPS’s policy treated both pregnant workers and non-pregnant workers the same and therefore was not discriminatory. The Fourth Circuit upheld the district court’s ruling. The Supreme Court will likely hear the case during its 2015 spring term.
