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EEOC Guidance on Pregnancy Discrimination Act and Access to Light Duty

By on October 23, 2014 in FMLA with 1 Comment

On July 14, 2014, the EEOC issued Enforcement Guidance on the Pregnancy Discrimination Act (PDA).  That law was passed in 1978 to make clear that discrimination based on pregnancy, childbirth or related medical conditions is a form of sex discrimination prohibited by Title VII of the Civil Rights Act of 1964.

The basic premise of the law is that women affected by pregnancy, childbirth, or related medical conditions must be treated the same as other persons not so affected but similar in their ability or inability to work.

Several of the examples provided by the EEOC of possible discrimination concern light duty.  In Example 9 of the Guidance, the Commission provides an example of pregnancy-related animus motivating an employer’s decision to deny a pregnant employee light duty.

An employee requests light duty because of her pregnancy.  The employee’s supervisor is aware that the employee is pregnant and knows that there are light duty positions available that the pregnant employee could perform.  Nevertheless, the supervisor denies the request, telling the employee that having a pregnant worker in the workplace is just too much of a liability for the company.  It is not necessary in this instance that the pregnant worker produce evidence of a non-pregnant worker similar in his or her ability or inability to work who was given a light duty position. 

The Commission goes on to state that even if there are no statements showing an animus, a pregnant worker can establish a violation of the PDA by showing that she was denied light duty or reasonable accommodations.  In Example 10 the Commission states:

An employer has a policy or practice of providing light duty, subject to availability, for any employee who cannot perform one or more job duties for up to 90 days due to injury, illness, or a condition that would be a disability under the ADA.  An employee requests a light duty assignment for a 20-pound lifting restriction related to her pregnancy.  The employer denies the light duty request, claiming that pregnancy itself does not constitute an injury, illness, or disability, and that the employee has not provided any evidence that the restriction is the result of pregnancy-related impairment that constitutes a disability under the ADA.  The employer has violated the PDA because the employer’s policy treats pregnant employees differently from other employees similar in their ability or inability to work.

However, the Commission goes on to say that if the employer has certain restrictions, such as limits on the number of light duty positions or the duration of light duty assignments, the employer can apply those restrictions across the board, including to pregnant workers.

The Commission also provides Example 12, demonstrating failure of an employer to apply restrictions equally.

An employer makes six light duty positions available to workers unable to perform one or more job duties due to an on the job injury, pregnancy, or an injury, illness, or condition that would constitute a disability under the ADA.  A pregnant worker applies for a light duty assignment as a result of work restrictions imposed by her pregnancy.  The employer denies the request, claiming that all six positions are currently filled.  The employee produces evidence that, in the past, the employer has provided light duty assignments to workers injured on the job even when all six assignments were filled.  The employee has provided evidence that the policy’s restrictions were not applied equally to the pregnant worker’s request for a light duty position. 

The Guidance is helpful to employers in understanding and avoiding potential acts of discrimination in relation to pregnant employees.  Employers who have a paternalistic approach to pregnant employees may easily stumble into violations of the PDA.  The focus should be on the ability of the pregnant employee to perform the essential job functions, not on speculative assessments of what a pregnant employee may or may not be able to do.  Stereotypes and assumptions that employers have about pregnant employees generally lead to ill-advised decisions.  For further information on the Enforcement Guidance on Pregnancy Discrimination, please contact the undersigned.

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John H. Geaney

About the Author

About the Author:

John H. Geaney, an executive committee member and shareholder with Capehart Scatchard, began an email newsletter entitled Currents in Workers’ Compensation, ADA and FMLA in 2001 in order to keep clients and readers informed on leading developments in these three areas of law. Since that time he has written over 500 newsletter updates.

Mr. Geaney is the author of Geaney’s New Jersey Workers’ Compensation Manual for Practitioners, Adjusters & Employers. The manual is distributed by the New Jersey Institute for Continuing Legal Education (NJICLE). He also authored an ADA and FMLA manual as distributed by NJICLE. If you are interested in purchasing the manual, please contact NJICLE at 732-214-8500 or visit their website at www.njicle.com.

Mr. Geaney represents employers in the defense of workers’ compensation, ADA and FMLA matters. He is a Fellow of the College of Workers’ Compensation Lawyers of the American Bar Association and is certified by the Supreme Court of New Jersey as a workers’ compensation law attorney. He is one of two firm representatives to the National Workers’ Compensation Defense Network. He has served on the Executive Committee of Capehart Scatchard for over ten (10) years.

A graduate of Holy Cross College summa cum laude, Mr. Geaney obtained his law degree from Boston College Law School. He has been named a “Super Lawyer” by his peers and Law and Politics. He serves as Vice President of the Friends of MEND, the fundraising arm of a local charitable organization devoted to promoting affordable housing.

Capehart Scatchard is a full service law firm with offices in Mt. Laurel and Trenton, New Jersey. The firm represents employers and businesses in a wide variety of areas, including workers’ compensation, civil litigation, labor, environmental, business, estates and governmental affairs.

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