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EEOC's Pregnancy Discrimination Enforcement Guidance May Cross A Line

July 17, 2014

By Michael G. McClory

On Monday the EEOC dropped a vanilla bomb that really has The Bullard Edge rankled. The agency took a largely symbolic action that recalls a favorite soliloquy from Macbeth (“…full of sound and fury, Signifying nothing.”)

All drama aside, the EEOC on Monday issued a document titled EEOC Enforcement Guidance on Pregnancy Discrimination and Related Issues. The Guidance states that it “provides guidance regarding the Pregnancy Discrimination Act and the Americans with Disabilities Act as they apply to pregnant workers.” Further, in a “Questions and Answers” released with the Guidance, the EEOC states that the “Enforcement Guidance updates prior guidance on this subject in light of legal developments over the past thirty years.”

While I believe the Guidance is a useful summary of the law (with exceptions, including the big one noted below), I am skeptical about the EEOC’s stated reason for releasing it and about the assertion that it is an “update” of any kind. With that as a preface, here are four reactions to the Guidance.

1. The Enforcement Guidance generally summarizes existing law

Much of the Guidance is useful and noncontroversial. It summarizes and illustrates an employer’s obligations under the PDA and ADA. Among other things, the Guidance reminds employers that the following actions are unlawful.
  • It is unlawful for an employer to fire, refuse to hire, demote, or take other adverse action against a woman where pregnancy, childbirth, or a related medical condition is a motivating factor in the adverse employment action. This is true whether the pregnancy is current, past or prospective.
  • It is unlawful for an employer to take an adverse action against a pregnant worker based on the employer’s concerns about her health and safety. This is true even where the employer believes that it is acting in the employee's best interest.
  • It is unlawful for an employer to require a pregnant employee who is able to perform her job to take leave during pregnancy or after childbirth. On the other hand, where this employee has a pregnancy-related disability the employer may need to grant a request for leave as a form of reasonable accommodation.
The Bullard Edge encourages you to read the Enforcement Guidance and the Q&A. Read them with a grain of salt, for the reasons set out below.

2. An Enforcement Guidance does not have the force and effect of law

It merely indicates how the EEOC interprets the law and intends to enforce the law. The division of powers, boiled down to its core, is as follows: the Legislative Branch passes laws; the Executive Branch implements laws; and the Judiciary Branch interprets and applies laws. The EEOC is part of the Executive Branch and has no legislative duties. Its regulatory authority is limited to that which has been delegated to it. 

The bottom line is that the EEOC does not have the authority to use the guidance format to interpret the law as if the agency were a court. Further, the EEOC is not authorized to issue guidance-as-quasi-regulation. The EEOC is subject to limits. It may only exercise the authority delegated to the EEOC by law. Where the agency exceeds its delegated authority, the courts have the authority to stop the EEOC. 

3. EEOC has a recent history of going too far and being chastised by the courts

Just last year, the United States Supreme Court severely criticized the EEOC for issuing guidance that made no sense. As we reported at the time, the Court’s June 24, 2013 decision in Vance v Ball State University rejected the EEOC’s definition of supervisor as “a study in ambiguity.” The Court found “no clear meaning” in the EEOC’s 1999 Enforcement Guidance titled Vicarious Employer Liability for Unlawful Harassment by Supervisors, which described a supervisor as an employee who wields authority “of sufficient magnitude so as to assist the harasser explicitly or implicitly in carrying out the harassment.” The Court observed that the EEOC’s definition “would present daunting problems for the lower federal courts and for juries.”

4. With this Guidance the EEOC may have gone too far.

The Guidance contains at least one section that may be construed as law-making and that has the distinct feel of being overtly political in nature.

Specifically, PDA Enforcement Guidance offers an expansive view of light duty. According to the EEOC, an employer must provide light duty for pregnant employees if it provides it to employees who are not pregnant but who are similar in their ability or inability to work. “Thus, for example, an employer must provide light duty for pregnant workers on the same terms that light duty is offered to employees injured on the job who are similar to the pregnant worker in their ability or inability to work.”

While this has the patina of reasonableness, the EEOC conveniently ignores the fact that this very question is currently pending before the United States Supreme Court for decision next term. In Young v. United Parcel Service, the Court will answer this question:

“Whether, and in what circumstances, an employer that provides work accommodations to nonpregnant employees with work limitations must provide work accommodations to pregnant employees who are ‘similar in their ability or inability to work.’”

The Fourth Circuit Court of Appeals had answered the question in the negative, which put it in the company of at least three other federal appellate courts. In a personal statement issued in support of the Guidance, EEOC Commissioner Feldblum acknowledges that this very issue is pending before the Supreme Court at this moment. However, she characterizes the EEOC’s action on this issue as “catching up with our responsibilities under Article II of the Constitution” rather than “’getting out ahead’ of the Supreme Court”.

In accepting this question for review, the Supreme Court has acknowledged that there is a split in the Circuits and that it must step in to resolve this matter. The Court will do that no later than June 2015 when its next term ends. This raises several questions and The Bullard Edge is interested in hearing from you on them.
  • In your view, has the EEOC acting precipitously and shown a lack of respect for the judicial process? 
  • Does the timing of the release open the EEOC to criticism that the Guidance is largely a political move (the November elections are coming)?
  • If you currently have a light duty / return to work program for employees injured on the job, how does the EEOC's stated enforcement position impact your program?
Let us know your thoughts. We hope to feature reader responses (anonymously) in an upcoming post.
Best regards,
The Bullard Edge