Three of my colleagues, Robin Shea, Eric Meyer, and Jon Hyman have written excellent blog entries on the latest EEOC guidance dealing with pregnancy discrimination. There is also a section of that guidance dealing with how pregnancy may also constitute disability discrimination under certain circumstances. I thought it would be informative if I did a bit of a different take from my colleagues on this by focusing on the disability discrimination aspects of the enforcement guidance in a true false format. So here goes:
1. Pregnancy is a disability
Pregnancy by itself is not a disability. However, if a pregnancy involves a physical or mental impairment that substantially limits one or more major life activities, then it is. You don’t think of pregnancy as being a physical or mental impairment. However, depending upon the pregnancy, it certainly can lead to a physical or mental impairment. The next question is whether a substantial limitation on one or more of life’s major activities is involved. This raises two other questions. First, what does it mean to be substantially limited? The EEOC in their final regulations defined substantially limits as being a matter of whether the person is substantially limited in a major life activity as compared to most people in the general population. Also, keep in mind that under the amendments to the ADA an impairment that is episodic or in remission is still considered a disability if it substantially limits a major life activity when active. Second, what is a major life activity? Under the amendments to the ADA, 42 U.S.C. § 12102(2), major life activities can include many different things (this list is not exhaustive): 1) caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working; and 2) including the operation of major bodily functions, such as but not limited to: functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions (the EEOC in its final regulations at 29 C.F.R. § 1630.2(I)(i),(ii) added the major life activities of sitting, reaching, and interacting with others). The EEOC in their guidance gives some examples of pregnancy related impairments that may substantially limit major life activities, such as but most certainly not limited to: pelvic inflammation, which may substantially limit the ability to walk; pregnancy related carpal tunnel syndrome, which may substantially limit the ability to lift or to perform manual tasks; disorders of the uterus or cervix necessitating certain physical restrictions to enable a full term pregnancy or resulting limitation following childbirth; pregnancy related sciatica, which may substantially limit musculoskeletal functions; gestational diabetes, which may substantially limit endocrine functions; and preeclampsia, which may substantially limit cardiovascular and circulatory functions.
In short, while pregnancy itself is not a disability, it is quite conceivable that pregnancy, the nature of it being what it is, will lead to a physical or mental impairment that substantially limits one or more major life activities.
2. There is no requirement under the ADA as amended that an impairment must last a particular length of time to be considered substantially limiting.
It is absolutely true that a temporary disability can be a disability under the ADA as I discussed in this blog entry. But you say, a disability has to last at least six months before it is considered a disability. That is not correct. The six-month provision only applies to allegations of being regarded as having a disability and in that situation the disability has to be both transitory and minor for the six-month rule to apply. If the disability does not satisfy both criteria, then the six-month rule, assuming allegations of regarded as, would not apply. If a person is alleging an actual disability, then the six-month rule doesn’t apply at all.
So what is an employer to do? Good question. First, as a preventive measure, the employer should strongly consider treating all disabilities, temporary or otherwise, as they would a permanent disability if that disability satisfies the actual disability prong of the ADA. Second, it has to be remembered that a person with a disability also needs to be qualified, i.e. capable of performing the essential functions of the job with or without reasonable accommodations, so that needs to be factored in as well.
3. How a person became impaired is irrelevant to the determination of whether an impairment is a disability.
People get disabilities for all kinds of reasons. Some are born with them and others get them later. The only question under the ADA is not how they got the disability, but rather whether they have a physical or mental impairment that substantially limits one or more major life activities. The EEOC and Department of Justice regulations specifically state this as well.
4. A reasonable accommodation is having someone perform an aspect of the employee’s essential job functions.
In this respect, I have to take issue with example 22 of the EEOC enforcement guidance. In particular, the example they give is this one:
“A warehouse manager who developed pregnancy related carpal tunnel syndrome was advised by her physician that she should avoid working at a computer keyboard. She is responsible for maintaining the inventory records at the site and completing a weekly summary report. The regional manager approved a plan whereby at the end of the week, the employee’s assistants input the data required for the summary report into the computer based on the employee’s dictated notes, with the employee ensuring that the entries are accurate.”
The critical question here is whether inputting the data required for the summary report into the computer is an essential function of the job. If it is not, then having someone else complete the task is not a problem. However, if it is, the employer is under no obligation to have someone else do that job for the employee. That said, under the ADA that person has to be a able to do the job with or without reasonable accommodations. If this is an essential function of the job, then the employer has to consider if there is a reasonable accommodation available. One that comes to mind, is voice dictation, particularly since the reference to carpal tunnel implies a problem with typing. What other reasonable accommodations might work would involve getting more information pertaining to why did the doctors say she should avoid working at a computer keyboard. Was it because she couldn’t type, which is what the examples seem to imply, or was it because of the sitting, or something else?
5. An employer is required to waive a workplace policy if a person with a disability cannot satisfy it.
It should be pointed out that there is a contradiction between the questions and answers about the EEOC’s enforcement guidance on pregnancy discrimination related issues and the actual enforcement guidance. That is, the question-and-answer in example 25 suggests that an employer has to allow a water bottle at a workstation even where water bottles at workstations are prohibited by company policy for good reasons. On the other hand, in one of the examples in 22 of the enforcement guidance, it says that the employer arranged for a person who needed regular intake of water because of a pregnancy related kidney condition to have a table placed just outside the file room where the employee could easily access water. The former, assuming following the policy is an essential function of the job, would not be a reasonable accommodation while the latter would be.
6. Granting leave in addition to what an employer would normally provide under a sick leave policy for reasons related to disability is a reasonable accommodation.
Answer: Maybe. Wait a minute, I can’t answer a true or false question with maybe can I? Okay, then I guess I have to say probably false. There I go again. Okay, I am going to say false because it would depend on the circumstances. Whew…….
We know that the family medical leave act grants 12 weeks of leave to care for a serious medical health condition. We also know that leave beyond that amount of time may also be a reasonable accommodation providing a person can give a definite date of when they will return to work. We also know that one court has said that anything more than six months of leave total is unreasonable as a matter of law. The thing about family medical leave is that there are requirements before a person is eligible to take that leave. For one thing, they have to work a certain number of hours in a calendar year. For another, the employer has to have at least 50 employees within a certain radius. So, the EEOC is saying that if a person does not have FMLA coverage or does not have sufficient sick leave coverage, it is a reasonable accommodation to grant leave, which may be unpaid, to deal with the pregnancy related disability. I don’t think the answer is so simple (see the link in this paragraph above). This will definitely depend upon the facts and circumstances of the situation.
7. It is a reasonable accommodation to temporarily assign an employee with a disability to light duty.
However, that assumes that the employer has a light-duty system. They are under no obligation to create such a system if they don’t have one. Also, it assumes that the person cannot do the essential functions of his or her job with or without reasonable accommodations. Finally, it assumes that the person can do the essential functions of the light-duty position with or without reasonable accommodations. One last thing, the employer may want to consider reassigning that person to a job where she can do the essential functions of the position with or without reasonable accommodation rather than a light-duty position (see the discussion of this blog entry).
BUT Don’T FORGET ABOUT THE PREGNANCY DISCRIMINATION ACT
The EEOC says in their enforcement guidance that if a pregnant employee needs light-duty (temporary work less physically demanding than her normal duties), the employer is required under the Pregnancy Discrimination Act to provide it because an employer cannot treat pregnant workers differently from employees were similar in their ability or inability to work based on the cause of their limitations. This I find terribly problematic. What this arguably says is that if you have a pregnant employee who does not have a disability, light-duty may still be demanded under the Pregnancy Discrimination Act because light-duty might be required in that situation if the person has a disability. If this is the reasoning, this is very bizarre. It is possible that this is not what is intended at all because the example that the EEOC mentions is that an employer may not deny light-duty to a pregnant employee based on a policy limiting light-duty to employees with on-the-job injuries. If the example is what the EEOC is trying to address by the confusing language, then I see no problem with it. Since the ADA does not care a hoot about how a person got a disability, I never understood policies that treat people differently depending upon how they got the disability and the same should go for pregnancy. Unfortunately, the literal reading of the language seem to suggest something else. At a minimum, this language creates a very confusing distinction between pregnancies and disabilities (I recognize that considering how broadly disability is defined under the amendment to the ADA the distinction may be more theoretical than practical. That said, the language is terribly confusing).
9. The EEOC enforcement guidance on pregnancy discrimination related issues is likely to be adopted by the courts.
Answer: Probably False
I believe the answer is false for several reasons, though I am hedging with probably since you never know what courts are going to do. First, when it comes to enforcement guidances, they have not gone through the proper rulemaking process. As a result, the courts are free to use them or not and many times they choose not to (for example, the Supreme Court in Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184 (2002), specifically rejected EEOC enforcement guidances in reaching their decision. True, the amendments to the ADA specifically overruled this decision, but the point remains that when it comes to EEOC enforcement guidances, a court is free to accept or reject them as they wish because they have not gone through the proper rulemaking process. Second, some of the things in the guidances are problematic, as discussed here and by my colleagues mentioned above, and that may give courts pause. Third, this enforcement guidance was not adopted unanimously. In fact, it was only on a narrow 3-2 decision that it was adopted. Finally, the Supreme Court of the United States recently granted certiorari on a case where disability discrimination in the context of pregnancy could very well could come up.
In summary, I never liked guidances, with one exception. Guidances to my mind are often a crutch for attorneys and prevent deeper level reasoning. They also can make things unnecessarily confusing and promote even more litigation. With respect to what was discussed in this blog entry, I would expect both to become true. At any rate, dealing with pregnancy just got a lot more complicated.