EMPLOYMENT LAW

CLIENT ALERT

July 18, 2014
NEW EEOC GUIDELINES PROTECT PREGNANT
EMPLOYEES
On July 14, 2014, the EEOC issued new enforcement guidelines regarding the PDA and
ADAAA.

EEOC GUIDELINE RECOMMENDATIONS

Of most interest, positions advanced by the EEOC in the guidelines include the
following:

An employee temporarily unable to perform job duties due to pregnancy must be
treated the same as non-pregnant employees who are temporarily unable to perform
the functions of the job;
Light duty must be afforded pregnant employees in the same manner granted to other
employees who are similar in their ability or inability to work;
Employers should recognize lactation as a condition covered under the PDA and
monitor requests accordingly; and
In some circumstances, a temporary condition during the course of pregnancy may
constitute a disability under the ADAAA.

POLITICAL BACKGROUND

Of the five EEOC commissioners, only three supported the issuance of the guidelines.
One of the primary points of contention was that a pending United States Supreme Court Case,
Young v. United Parcel Services, Inc., may effectively negate or alter the import of the
guidelines. In Young, a driver working for United Parcel Service (UPS) requested light duty
during her pregnancy. UPS requires drivers to be able to lift 70 or more pounds, and Young
presented a doctors note indicating she should not lift more than 40 pounds. UPS rejected
Youngs request because UPSs policies did not provide for light duty because of pregnancy.

Even though UPS offered Young leave over and above her entitlement under the Family
and Medical Leave Act, Young sued UPS, arguing (in part) that it discriminated against her in
denying her light duty request. The Fourth Circuit Court of Appeals ultimately disagreed with
Young, holding that UPS had enforced pregnancy-neutral policies, and Youngs 40-pound lifting


restriction did not give rise to a disability under the ADAAA.
1
The Supreme Court has agreed to
hear Youngs case against UPS, and it remains pending.

PRACTICAL RECOMMENDATIONS FOR EMPLOYERS

Courts only have an obligation to follow EEOC guidelines to the degree that they
recognize the persuasive power of the guidelines. However, employers should
recognize that, absent further direction from the Supreme Court, the federal and state
agencies investigating pregnancy discrimination charges will look to EEOC
guidelines for guidance. The EEOC reports that the number of pregnancy
discrimination charges continues to rise citing a 46% increase in charges filed
between 2007 and 2011.

Employers should evaluate requests for light duty made by pregnant employees in the
same manner as they would any other request for light duty, including those made by
employees with work-related injuries. Absent further direction from the Supreme
Court, the previously recognized defense of having a pregnancy-neutral policy that
afforded leave to other groups of employees will be scrutinized for adverse impact
upon pregnant employees.

The EEOC has emphasized its focus on employee requests related to lactation, and
employers should respond to the lactation-related requests with the same insight and
sensitivity that would be used with respect to any other condition.

CONCLUSION

In many ways, the guidelines reiterate the EEOCs stance on PDA enforcement, and its
position that the PDA applies to current pregnancies and previous and possible future pregnancy-
related situations. However, the guidelines represent a marked departure from policies
considered standard by many employers, such as treating work-related injuries differently than
pregnancy. Prior to the Supreme Courts ruling on the Young case, employers should evaluate
all employee requests and issues related to pregnancy accordingly.

For a more detailed discussion and additional links to Enforcement Guidance, a Question
and Answer document, and an EEOC Fact Sheet, visit
http://www.eeoc.gov/eeoc/newsroom/release/7-14-14.cfm









1
707 F.3d 437 (4th Cir. 2013), cert. granted, 81 U.S.LW. 3602 (U.S. July 1, 2014)(No. 12-1226).


ADDITIONAL INFORMATION

For more information about these decisions, please contact your Kutak Rock attorney or
the authors of this Alert:

Brett M. Wendt
1801 California Street, Suite 3100
Denver, CO 80202
(303) 292-7868
Brett.Wendt@KutakRock.com

Nancy A. Wood
1650 Farnam Street
Omaha, NE 68102
(402) 231-8971
Nancy.Woods@KutakRock.com

For more information about our attorneys and how we can assist your workplace, please
visit us at www.kutakrock.com and click on Practices, Employment Law for a list of
attorneys and contact information.



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