Nine months of pregnancy may feel interminable to women. But women in the workplace have had to wait several years for the Equal Employment Opportunity Commission to issue guidance on pregnancy discrimination and what protection disability law provides to protect their jobs.
But activity has come fast and furious this month on the issue.
First, the U.S. Supreme Court agreed on July 1 to take up a case brought by Peggy Young, a United Parcel Service employee who alleges that the shipping company did not provide her the same accommodations during her pregnancy as it provides employees who are injured on the job, who have a permanent disability, or who are ineligible for a commercial motor vehicle license.
Then, on July 14, the EEOC issued its long-awaited guidance on how it will enforce federal disability law and civil rights law to protect pregnant women facing discrimination.
Gary Phelan, an employment lawyer at Mitchell & Sheahan in Stratford and Stamford, who co-authored a treatise on pregnancy disability discrimination in the workplace, calls pregnancy discrimination claims the fastest-growing area of employment law. According to the EEOC, 5,342 such complaints were filed with the agency in the fiscal year of 2013, compared to 3,900 complaints in fiscal year 1997.
A study by the National Partnership for Women & Families also found pregnancy discrimination claims by women of color increased 76 percent between fiscal years 1996 and 2005, according to federal regulators.
The increase in cases might simply mean there are more women in the workplace, a trend that was acelerated by the recent economic downturn. “In order to afford to live, they have to work,” said Phelan, who mostly represents employees.
Peter Murphy, a lawyer who represents employers with Shipman & Goodwin’s employment law practice, said it is interesting that the EEOC’s guidance came right after the Supreme Court granted certiorari in Young v. UPS. According to Murphy, the EEOC has adopted the position argued by Young’s attorneys: a pregnant employee may be entitled to reasonable accommodation under the Americans with Disability Act for pregnancy-related conditions.
But Murphy said reasonable minds could disagree on the meaning of the Pregnancy Discrimination Act of 1978, which was enacted to overturn a Supreme Court decision that held that pregnancy discrimination does not qualify as sex discrimination under the Civil Rights Act.
The 1978 law ensures the civil rights of pregnant women. They must be permitted to work in the same conditions as any other employee as long as they are able to work and pregnant women must be given the same protection that any other employee gets when they are unable to work for medical reasons.
There is a split among circuit courts on interpreting the PDA, Murphy noted.
‘Split of Authority’
The U.S. Court of Appeals for the Fourth Circuit ruled against Young, with the judges ruling that a pregnant plaintiff must demonstrate that an employee who received more favorable treatment was similarly situated in all respects. According to the brief from Young’s counsel, Samuel Bagenstos, of the Michigan Clinical Law Program, and Sharon Fast Gustafson of Arlington, Va., the Fourth Circuit ruling conflicted with a decision by the Sixth Circuit.
The Sixth Circuit held that a plaintiff alleging discrimination under the Pregnancy Discrimination Act need only show that another employee who was similar in his or her ability or inability to work received the employment benefits denied to her. Young’s counsel also argued that the Fourth Circuit’s position on is inconsistent with that of the Tenth Circuit, but similar to rulings by the Fifth, Seventh and 11th Circuits.
There is “clearly a split of authority,” Murphy said. “It’s an important issue for women and it deserves to be clarified.”
While the Supreme Court regularly cites the EEOC’s analysis of employment law and civil rights law, there have been cases in which the Supreme Court disagreed with regulators’ interpretation of the law, Murphy said.
Both Phelan and Murphy said the EEOC’s position is a significant development and is an aggressive reading of the Pregnancy Discrimination Act.
Pregnancy-related conditions have not been considered a disability under the American Disabilities Act because the definition of disability used to be very narrow, Phelan said. He added the pregnancy itself still is not considered a disability.
The ADA Amendments Act of 2008 expanded the definition of disability, according to the EEOC, making it “much easier for pregnant workers with pregnancy-related impairments to demonstrate that they have disabilities for which they may be entitled to a reasonable accommodation under the ADA.”
The EEOC’s recent guidance is the first time the federal government has recognized that the objectives of the law protecting against pregnancy discrimination and the law protecting people with disabilities may be overlapping, Phelan said, and employers may need to provide accommodations for women with pregnancy-related issues.
“That’s a major change in the federal government’s policy,” Phelan said.
Phelan highlighted that, according to the EEOC, a number of pregnancy-related impairments would qualify as temporary disabilities, such as pregnancy-related anemia, pregnancy-related sciatica, pregnancy-related carpal tunnel syndrome, gestational diabetes, nausea that can cause severe dehydration, abnormal heart rhythms that may require treatment, swelling, especially in the legs, due to limited circulation, and depression.
The main importance for the legal community from this flurry of activity regarding pregnancy discrimination, Phelan said, is less for employment lawyers.
Law firms must be aware of the changes in the law as employers of lawyers and support staff who may become pregnant, he said.