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SHRM Newsletter: Controversy on EEOC Guidance on Pregnancy Discrimination
Posted on Jul. 17, 2014

This is Utah SHRM Legal-mail no. 2014-13 prepared for Salt Lake SHRM, the Human Resources Association of Central Utah (HRACU), the Northern Utah Human Resources Association (NUHRA), the Color Country Human Resources Association (CCHRA), the Bridgerland Society for Human Resource Management and Utah at-large members of the national Society for Human Resource Management (SHRM).







CONTROVERSY ON EEOC GUIDANCE ON PREGNANCY DISCRIMINATION: For the first time in thirty years, the Equal Employment Opportunity Commission (EEOC) has issued a new guidance attempting to interpret and explain the Pregnancy Discrimination Act (“PDA”). Some critics are asserting that the EEOC is attempting to expand the PDA to include an affirmative accommodation obligation like that found in the Americans With Disabilities Act (ADA). As noted in the last update, the United States Supreme Court will consider whether federal laws prohibiting pregnancy-based discrimination also require that employers provide job accommodations to pregnant employees. Lower courts have agreed with employers that there are no such obligations and now the Supreme Court will decide the issue. With this case pending, some of the EEOC Commissioners have criticized the decision to issue the guidance now, rather than waiting until after the Supreme Court rules. However, in issuing the guidance, the EEOC stated, “Much of the analysis in the enforcement guidance is an update of longstanding EEOC policy.” You can read the press release for (and find links to) the guidance here:

WHAT DOES THE NEW PREGNANCY GUIDANCE SAY ON ACCOMMODATION? According to the EEOC, The guidance sets out the fundamental PDA requirements that an employer may not discriminate against an employee on the basis of pregnancy, childbirth, or related medical conditions; and that women affected by pregnancy, childbirth or related medical conditions must be treated the same as other persons similar in their ability or inability to work. The guidance also explains how the ADA's definition of ‘disability’ might apply to workers with impairments related to pregnancy.” For example, the EEOC says an employer may have to provide light duty for pregnant workers “if it provides light duty for employees who are not pregnant but who are similar in their ability or inability to work… For example, an employer may not deny light duty to a pregnant employee based on a policy that limits light duty to employees with on-the-job injuries.” On leave, the new guidance states an employer “must allow an employee who is temporarily disabled due to pregnancy to take leave without pay to the same extent that other employees who are similar in their ability or inability to work are allowed to do so.” Finally, the new guidance notes that “employees with pregnancy-related impairments may be covered by the ADA. Although pregnancy itself is not an impairment within the meaning of the ADA and thus is not a disability…Pregnancy-related impairments are disabilities if they substantially limit one or more major life activities or substantially limited major life activities in the past.” The EEOC guidance lists these examples: “(1)  pelvic inflammation, which may substantially limit the ability to walk; (2) pregnancy-related carpal tunnel syndrome affecting the ability to lift or to perform manual tasks; (3) disorders of the uterus or cervix that may necessitate certain physical restrictions to enable a full term pregnancy, or may result in limitations following childbirth; (4) pregnancy-related sciatica limiting musculoskeletal functions; (5) gestational diabetes limiting endocrine function; and (5) preeclampsia, which causes high blood pressure, affecting cardiovascular and circulatory functions.”

WHAT ELSE IS IN THE NEW EEOC GUIDANCE? According to the EEOC’S own summary, the guidance discusses: “(1) The fact that the PDA covers not only current pregnancy, but discrimination based on past pregnancy and a woman's potential to become pregnant; (2) Lactation as a covered pregnancy-related medical condition; (3) The circumstances under which employers may have to provide light duty for pregnant workers; (4) Issues related to leave for pregnancy and for medical conditions related to pregnancy; (5) The PDA's prohibition against requiring pregnant workers who are able to do their jobs to take leave; (6) The requirement that parental leave (which is distinct from medical leave associated with childbearing or recovering from childbirth) be provided to similarly situated men and women on the same terms; (7) When employers may have to provide reasonable accommodations for workers with pregnancy-related impairments under the ADA and the types of accommodations that may be necessary; and (8) Best practices for employers to avoid unlawful discrimination against pregnant workers.”  You can read a good Q & A summary of the new EEOC guidance here:  You can read the full enforcement guidance here:

OTHER HR LAW NEWS BRIEFS: Here are some other interesting news briefs from the world of HR law. In an interesting test of the Fair Labor Standards Act (FLSA) exemption regulations, a well-known national retailer has been sued in California by employees alleging that the company improperly classified its store assistant managers as exempt employees. A New Jersey healthcare company has paid $1.35 million to settle ADA claims, i.e. that the hospital system failed to provide leave as a reasonable accommodation for disabled employees. A Boston hospital has agreed to pay $1.5 million to settle FLSA claims from nurses that they were inappropriately docked pay—under an automated timekeeping system—for breaks and meal periods they never took. Finally, a national retail provider of rent-to-own merchandise (appliances, furniture, etc.) has been sued under the federal Fair Credit Reporting Act (FCRA) with the plaintiffs in the case alleging that the company used a third party to run background checks but did not provide copies of the same before taking adverse action against applicants and employees (e.g. denying or terminating employment) based on the background check results. The lawsuit is pending in Georgia.

LEARN MORE ABOUT HR LAWS AT CROSSROADS 2014: You can learn more about these legal developments—and lots of other HR issues—at the annual Utah Human Resources (Utah SHRM) State Council Annual Crossroads Conference set for September 16–17, 2014 at the Utah Valley Convention Center.  Find out more here:  What’s in it for you? This is your opportunity to: (1) Discover comprehensive and relevant professional development programs for HR practitioners; (2) Earn re-certification credits for PHR and SPHR at an unbeatable price; (3) Attend sessions for both general credit hours and strategic management credit; (4) Network with peers; (5) Explore innovative solutions with a wide variety of vendors; (6) Improve your knowledge as an HR Professional; (7) Stay current on today’s hot industry topics; (8) Find answers to your most pressing HR questions; and (9) Give back to the HR community through our silent auction. Keynote Speakers include Matthew Lieberman – Author of “Social: Why Our Brains are Wired to Connect;” Dr. Linda Sharkey – Global Managing Director of Achievable Inc. and co-author of “Optimizing Talent;” Don Tanner –  Regional VP of Partners in Leadership and Oz Principle Workshop Specialist and David Marquet – Former nuclear submarine commander and author of “Turn this Ship Around!” There also will be many excellent legal presentations by some of the fine employment lawyers from the law firm of Holland and Hart. Don’t miss it!

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mikeAttorney Michael
Patrick O'Brien

Mike O’Brien is an experienced and accomplished employment attorney, media lawyer and courtroom litigator.  He is active in SHRM and has received the highest possible reviews from rating services like Martindale - Hubbell (AV rating), Chambers USA, Utah Business Legal Elite, Best Lawyers in America, Who’s Who Legal USA, and SuperLawyers.  HR Executive Online has named him as one of America’s most powerful 100 employment lawyers, but keep in mind, this does not mean he is good at moving heavy furniture.

Awards and Recognition


OBrien Best

Chambers 2011 Attorney

Super Lawyers
Michael Patrick O'Brien

Best Lawyers In America, “Salt Lake City Best Lawyers Employment Law Lawyer Of The Year,” 2011-2012

Best Lawyers In America, First Amendment Law, Labor And Employment Law, 2005-2012

Chambers USA, Labor & Employment, 2003-2011

Employment Lawyer Of The Year, Utah State Bar, 2001

Human Resources Executive, Nation’s Most Powerful Employment Lawyers In America, 2010

Mountain States Super Lawyers, 2007-2012

Utah Business Magazine, Legal Elite, Labor And Employment, 2006-2012