Family and Medical Leave Act

Essential job functions, Big Time College Football and Alcoholism

December 14, 2015 by William Goren 5 Comments

Just about everyone on the Internet and in the blogosphere is talking about the filing of Coach Sarkisian’s disability discrimination lawsuit against University of Southern California. All kinds of folks have blogged on it already. Normally, since all kinds of folks have blogged on it, many doing it quite well, I would refrain from commenting. However, since I have written on the ADA and sports for years, I didn’t feel it was something I could avoid. So here goes:

1. The allegations are entirely based upon California state law. They include: breach of contract for coaching USC; breach of implied covenant of good faith and fair dealing; failure to engage in the interactive process; disability discrimination; retaliation; breach of confidentiality of medical information; invasion of privacy; negligent disclosure; wrongful termination; breach of contract with respect to a marketing agreement; negligent supervision, retention and hiring.

2. California for years, I actually took a course while receiving my J.D. degree from the University of San Diego on the breach of implied covenant of good faith and fair dealing, has had a separate cause of action holding a party to a contract liable where that party does not behave in a reasonable way with respect to its contractual terms. Other states do require good faith and fair dealing in their contracts but it is not a separate cause of action (Illinois for example).

3. Interesting that all the allegations are based entirely on California state law for two reasons. First, the FEHA (Unruh Civil Rights Act), makes a violation of the ADA a violation of that act. Second, interesting that there is no Family and Medical Leave Act allegation. Clearly, the coach worked the requisite number of hours in the prior year and a serious health condition was involved. The advantage to a Family and Medical Leave Act allegation is that a person is entitled to the same or equivalent job upon return from Family and Medical Leave Act leave.

4. Turning to the specific allegations (for purposes of this blog entry, we are going to take the allegations as if they were true like a motion to dismiss, which, of course, may not actually be the case:

A. In November 2015, the coach pleaded with the athletic director for help and was immediately placed on leave. Less than 24 hours later while on a plane to a rehabilitation facility, the coach was fired.

If this is true, this could be a problem for the University of Southern California along the lines of the case discussed in this blog entry, which held that a person requesting the ability to enter a rehabilitation program was protected conduct vis a vis the ADA.

B. The coach has now completed a rehabilitation program, is sober, and ready to return to work.

This raises the question of whether the coach can perform the essential functions of the job with or without reasonable accommodations. For an article discussing what might be the essential functions of his job and a coach’s ability to perform them, take a look at this article.

C. In early 2015, his wife seeks divorce after 17 years of marriage. This led to anxiety, depression, and further alcohol dependency. He still recruited well.

This raises two points. First, did the University know about his anxiety, depression, and further alcohol dependency. An employer is under no obligation to accommodate an individual if they are not aware of the disability. The coach alleges that at all time the University of Southern California knew of his disability. Also, magic words are not required. Second, the reference to recruiting well is probably an attempt to show that he was able to perform the essential functions of the job.

D. The widely known episode that occurred at the “salute to Troy,” function was the result of anxiety medicines being mixed with alcohol. After this episode, a psychologist employed by the University of Southern California that he had been seeing told him to change the plan if it was not working.

E. The coach was made to sign a letter requiring weekly visits with the therapist.

This allegation would go to whether the University of Southern California was aware of his disability.

F. The coach has suffered from chronic sleeplessness for over 20 years

Chronic sleeplessness could well be a disability. On the other hand, it raises the question of whether the coach was able to perform the essential functions of the job with or without reasonable accommodations.

G. The athletic director threatened to fire the coach. In response, the coach said that he was not right and needed time to get well. The athletic director responded “unbelievable,” and ignored any opportunity for the interactive process.

Once an employer is aware of a disability they do have the obligation to engage in the interactive process. On the other hand, employers have a perfect right to a substance abuse free workplace and are free to discipline for violation of those policies. If the University of Southern California is relying on this, hopefully they will be able to show that their discipline of the coach was similar to others faced with this situation. If not, that would create the inference that disability motivated the actions of the University.

H. The contract for coaching the football team said that if he was fired for cause, 10 days advance notice was necessary in order to allow him to cure the problem.

The allegations are that the opportunity to cure was never given to him. On the other hand, perhaps the University would argue that giving the opportunity to cure would be a futile act in light of the disability. You also wind up circling back as to how the University handles alcoholism where employees are not meeting the standard of the job (under the ADA, an employer is permitted to evaluate an alcoholic based upon the work they are doing regardless of the fact that they are an alcoholic).

I. Putting an assistant coach, who is now the coach of the University of Southern California football team (signed a five-year deal I believe) would not constitute an undue hardship to University of Southern California while the coach worked things out. That is certainly true. University of Southern California did quite well with the assistant coach they put in. So well, that they are in a bowl game and they signed him to a five-year deal. On the other hand, the ADA is pretty clear that it is not a reasonable accommodation to have someone else do a person’s essential functions of the job. This leads again to wondering why the Family and Medical Leave Act was not activated nor is it being argued by the plaintiff. The reasoning being is that while it is not a reasonable accommodation under the ADA to have someone else do a person’s essential functions of the job, if a serious health condition is involved, that person is entitled to 12 weeks of leave under the Family and Medical Leave Act in order to deal with the situation and then he gets his job back when he returns from the leave. Under that scenario, putting someone else in to do the job would make perfect sense and the coach would get the job back after the 12 weeks.

J. Both contracts with the coach may have an arbitration clause in them. If so, he is claiming that the arbitration clauses are procedurally and substantively unconscionable. I am aware that the United States Supreme Court is hearing a case on whether California can get around the preemption of the federal arbitration act. If the United States Supreme Court track record on arbitration act cases is any indication, it is quite possible that the court will find that the get around California uses with respect to the federal arbitration act will not fly. However, we will have to see what the United States Supreme Court says. Also, that decision will have to be analyzed to see how it would apply to this case, if at all.

K. The University of Southern California did not follow contractual requirements for termination with or without cause. That is certain notice requirements were not met. If the contract was terminated without cause, a liquidated damages provision kicks in and the University of Southern California did not pay it.

L. Allegation of retaliation was made for seeking accommodations (see the blog entry mentioned above).

M. There are allegations that the University failed to put in preventive systems to prevent disability discrimination and retaliation for pursuing rights under the disability discrimination statutes.

N. The coach claims that the University psychologists disclosed information without his consent.

Under the ADA, information about a person’s disability is confidential and needs to be in a place separate and apart from the personnel file. This creates the question of just where will you find the disability related information regarding the coach. On the other hand, the University might argue that they have a perfect right to that information since the coach was seeing a University psychologist. It a similar argument to what the University of Oregon argued when it wanted the information of counseling sessions by a student who had been sexually assaulted and saw a University counselor and then proceeded to sue the University for not doing anything about the assault. Considering what the coach was getting paid, it is interesting that the coach did not use his own medical professionals rather than the University’s.

O. The marketing contract was never lawfully terminated.

P. The coach is being represented by a California firm and by a Dallas Texas firm.

5. You may ask why didn’t the University of Southern California allow the coach to go into the rehabilitation program and then terminate him because he was a current user of alcohol per this blog entry? The answer to that question is that an argument can be made, as Robin makes in her blog entry, that the current user exception does not apply to alcoholism. That indeed may be the case. On the other hand, an argument can be made that the current user exception does apply to alcoholism because while it is absolutely true that 42 U.S.C. § 12114(a),(b) specifically talks about drugs and there is no mention of alcoholism or alcohol at all in those provisions, 42 U.S.C. § § 12114(c),(e), quite explicitly mention alcohol. That leads to the argument that the current user exception, notwithstanding language apparently to the contrary, was meant to apply to alcohol as well. Otherwise why is alcohol being mentioned throughout 42 U.S.C. § § 12114(c),(e).

In addition to the above, what might the defendant be thinking? Two excellent blog posts on this very subject can be found here (Jon Hyman) and here (Robin Shea).

Next week, I plan to post the top 10 most popular blog entries of the year. After that, I just might take a couple of weeks off. It is the Christmas break after all:-)

Failure to Promote, Failure to Accommodate, Retaliation, and Breach of Confidentiality As ADA Causes of Action

August 17, 2015 by William Goren 1 Comment

Hope everyone had a great weekend. The deadline for submitting my blog for the ABA top 100 legal blawgs expired last night. A few have let me know that they have nominated me. Also, I know from last year that it is entirely possible that someone nominated me without letting me know. In either event, your support is very much appreciated. Even if you didn’t nominate me but love to read my blog, your support is appreciated there as well. If memory serves, it won’t be until about December that I find out whether we made it again. Of course, I will keep everyone posted.

Today’s case concerns a variety of causes of action that might arise with respect to the ADA including: failure to promote, retaliation, and breach of confidentiality. The case is Gascard v. Franklin Pierce University, which can be found here (it appears to be an unpublished decision since only a Lexis cite is available). As is typical with my blog entries, I have divided the blog entry into several categories: facts, court’s reasoning (failure to accommodate); court’s reasoning (failure to promote); court’s reasoning (breach of confidentiality); court’s reasoning (retaliation); where was the FMLA claim?; Miscellaneous (individual liability); and takeaways. The reader is free to focus on any or all of the categories.

I
Facts

Plaintiff was a professor of art history at the University and its sole art historian since 1997 as well as the director of the University’s art galleries in 1998. In late 2011, she took 2 1/2 months of short-term disability leave due to situational stress, but returned to teaching in early 2012. Later that year, in October, she applied for the position of coordinator for the Department of fine arts, a position which she was completely qualified for. Nevertheless, the University gave the post to one of her colleagues, a man under the age of 40 who had worked there only since 2010. Shortly after that, she provided her immediate supervisor with a note from a physician stating that because of stress-related factors, she was restricting the plaintiff from meeting attendance and assemblies. In response to that request, the University gave her permission only to leave meetings if she felt symptoms of situational stress, an arrangement which her physician found precarious. In February 2013, she filed a charge of disability discrimination against the University with the EEOC. Later that month, she was the sole volunteer to offer her services to a committee of long trusted colleagues (general liberal education committee), but was without discussion denied that position. The position was awarded to a male colleague that had not volunteered with the explanation that he needed more committee work. A few months later, the plaintiff received a performance review where her requirement for more service to the University was pointedly indicated. The plaintiff also alleged that after she had charged the University through the EEOC, it disseminated personal and sensitive material to a colleague in a position statement to the EEOC charge. In October 2014, she began a period of FMLA leave and returned to work in mid December 2014. On January 13, 2015, the Dean of the University informed her that she would no longer coordinator of the art gallery since she had given that responsibility to another faculty member while she was on leave. While the plaintiff acknowledged that she had been scheduled to take a sabbatical during the spring semester, the semester had yet to start at the time Dean announced that she had been relieved the responsibilities over the gallery. Further, the Dean had also suggested to her that her responsibilities would not be returned to her even after she returned from the sabbatical. She filed a pro se complaint alleging the following causes of action with respect to the ADA: failure to accommodate, failure to promote, retaliation, and breach of confidentiality. The defense moved to dismiss.

II
Court’s Reasoning (Failure to Accommodate Claim)

1. To make out a reasonable accommodation claim, a plaintiff has to show: that she is a person with a disability as defined by the ADA; that she is an otherwise qualified individual (the ADA uses the term, “qualified” now while the Rehabilitation Act continues to use the term, “otherwise qualified.” The two terms are identical in their meaning); and that the defendant knew of her disability and did not reasonably accommodate it.

2. A factual question existed as to whether the University’s claim that they allowed her either to participate by phone or to leave meetings as necessary to avoid symptoms of situational stress was a reasonable accommodation because: her physician deemed it precarious; she informed the defendants that the accommodation did not prevent the bullying at the meetings from continuing to exacerbate her stress; and other faculty members had been given a blanket waiver from attending meetings altogether.

III
Court’s Reasoning (Failure to Promote Claim)

1. To make out a claim for failure to promote, a plaintiff has to show: she is a member of a protected class; she was qualified for an open position; she was denied the position; and the position was given to someone with similar or inferior qualifications.

2. The defendants more or less acknowledged that the complaint alleges these facts as to the department coordinator role because they admitted that the plaintiff had a disability and recognized in their objections that the complaint had made allegations going to the other requirements. Finally, it is not necessary to plead facts sufficient to establish a prima facie case at the pleading stage.

IV
Court’s Reasoning (Breach of Confidentiality)

1. It is not necessary when it comes to disclosure of certain employee medical information that the disclosure be done in furtherance of some act of disability discrimination because the ADA sets forth independent prohibitions on disability-based job discrimination, including failure to accommodate and separately, the disclosure of certain employee medical information.

2. While the majority of cases have held that in order to recover for a violation of the ADA’s confidentiality provisions an employee must show actual damages (emotional, pecuniary, or otherwise), the court did not need to decide whether that requirement applied because even if the requirement did apply, the plaintiff had at this stage of the litigation alleged sufficient facts. That is, her complaint alleged that she suffered emotional distress, humiliation, and anguish and linked that to the alleged disclosure of her medical information to her colleague.

V
Court’s Reasoning (Retaliation)

1. To make out a case for retaliation, the plaintiff has to show: she engaged in protected conduct; she suffered an adverse employment action; and a causal nexus exists between the protected conduct and the adverse action.

2. Due to the timing of the adverse actions and the EEOC charges, the retaliation claim was certainly plausible.

3. The Supreme Court has held that to prevail on a retaliation claim, the plaintiff only has to show that a reasonable employee would have found the challenged action materially adverse. That is, might it well have dissuaded a reasonable worker from making or supporting a charge of discrimination. Accordingly, since this is the proper standard for retaliation claims, the allegations in the complaint were such that it is certainly plausible a reasonable worker would have found the employer’s actions materially adverse in the sense they might well have dissuaded her from making or supporting a charge of discrimination.

VI
I Bet You Were Wondering Where the FMLA Claim Was

The FMLA has its own rules with respect to a person who goes out on leave to attend to a serious health condition. If that person qualifies for FMLA leave, FMLA requires that upon return from that leave the person be restored to that job or an equivalent job. The facts here are such that such a claim would seem to be supported. The plaintiff did move to amend her complaint to add the FMLA claim, and the court granted it saying that the amendments were not the result of undue delay (she filed a motion to supplement her complaint less than two weeks later after being relieved of her responsibilities of gallery coordinator), nor would such amendment be futile because the supporting facts if taken as true, are plausible on their face.

VII
Miscellaneous (Individual Liability)

The court also threw out the individual liability claims as none of the applicable statutes allowed for individual liability.

VIII
Takeaways:

1. The ADA is a complex law and it constantly bounces into other laws as readers know very well. Knowledgeable legal counsel is always helpful when it comes to traversing the ADA and related laws. One wonders why knowledgeable legal counsel was not consulted, at least it appears that way. The type of problems that arose here would have been the kinds of problems that a knowledgeable employment lawyer would have been able to deal with long before reaching the litigation stage.

2. There are situations where you could comply with the ADA but violate the FMLA and vice a versa. Again, knowledgeable counsel is helpful. Also, this case argues for staff training by knowledgeable trainers.

3. This case is excellent for understanding how to make out various claims including: failure to accommodate; failure to promote; retaliation; and to a lesser extent, breach of confidentiality.

4. An adverse action for purposes of employment discrimination has a different meaning than an adverse action for purposes of retaliation claims; the standard for retaliation claims is far lower.

5. The case law is overwhelming that individual liability does not happen with respect to ADA claims.

6. Pro se claims must be taken seriously (I am not saying they weren’t in this case, but am making a general point).

7. An act of disability discrimination is not required with respect to a breach of confidentiality claim per the requirements of the ADA.

Is pregnancy a disability? The true false version

July 21, 2014 by William Goren 3 Comments

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

Answer: False

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.

Answer: True

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.

Answer: True

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.

Answer: False

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.

Answer: False

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.

Answer: True

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.