Three separate panels of witnesses testified at the February 15 Equal Employment Opportunity Commission meeting to discuss the laws that govern pregnancy and caregiver-based employment discrimination, current charge statistics on these types of claims and how to help employers comply with the many laws involved. Several panelists urged the Commission to update and clarify current guidance to better assist employers.

Discrimination statistics

EEOC legal counsel Peggy Mastroianni discussed the general requirements of the Pregnancy Discrimination Act, as well as the provisions of the Americans with Disabilities Act that may apply to pregnant workers. Mastroianni stated that the EEOC has long worked to eliminate discrimination based on sex, including discrimination based on pregnancy, relying on a combination of enforcement, policy and outreach efforts. She noted that, more recently, the Commission has “expanded our focus to address newer forms of discrimination, including unlawful discrimination against individuals with caregiving responsibilities.” According to Mastroianni, over the past decade the EEOC and state and local Fair Employment Practices agencies “have received 53,865 charges alleging pregnancy discrimination, resolved 52,396 charges, and obtained $150.5 million in monetary benefits for charging parties.”

As for caregiving discrimination charges, Mastroianni said that the Commission only recently began collecting enforcement data on caregiver discrimination. Based on this initial information, the number of caregiver discrimination charge receipts appears to have increased relatively steadily over the past five fiscal years. During that time, the Commission has received approximately 712 charges alleging unlawful caregiver discrimination, resolved approximately 564 charges, and obtained approximately $796,000 in monetary benefits for charging parties.

She testified that many caregiver discrimination charges involve claims of unlawful disparate treatment based on gender in violation of Title VII of the Civil Rights Act. Caregiver discrimination cases arise also under the ADA, which prohibits discrimination because of the disability of an individual with whom the worker has a relationship or association, such as a child, spouse or parent.

According to Mastroianni, the issues alleged in most caregiver discrimination charges within the past five years “mirror the issues most commonly alleged in pregnancy discrimination charges over the past ten fiscal years.”

Claims of caregiver discrimination may also fall under the purview of the Family and Medical Leave Act. Melvina C. Ford, senior policy advisor with the Department of Labor’s Wage & Hour Division testified that in fiscal year 2011, the WHD, "received over 2,200 FMLA complaints alleging FMLA violations and resolved over 2,100 complaints. The resolved complaints included more than 850 cases involving terminations, more than 500 allegations of refusal to grant leave, more than 200 allegations of refusal to reinstate to equivalent position, more than 500 cases involving allegations of discrimination (or retaliation) for exercising FMLA rights, and approximately 40 cases alleging the failure to maintain health benefits. In addition, in the more than 2,000 cases resolved, WHD found violations in approximately 40% of the cases, impacting approximately 900 workers directly."

Some panelists call for more guidance

Several panelists urged the Commission to provide more detailed guidance on these topics. In 2009, the EEOC issued guidance, Employer Best Practices for Workers with Caregiving Responsibilities, which supplemented an earlier compliance document on caregiver discrimination issued in 2007. The EEOC maintains a separate information page on pregnancy discrimination.

The current guidance needs clarification, according to some testifying at the meeting. Deane Ilukowicz, vice president of Human Resources for Hypertherm, Inc., sought clarity on the interplay among leave laws. She claimed that “confusing, complicated and sometimes contradictory” laws can derail employers that want to do the right thing. She provided an example where both the FMLA and ADA would govern leave for a pregnant employee with a back injury. Ilukowicz said that, "each law has different provisions which must be reconciled and reviewed and reconciled, including coverage eligibility, coverage thresholds, and length of leave, medical certification and fitness for duty certification. We would have to make separate requests for information from physicians for eligibility for ADA and FMLA. Does back pain 'substantially limit one or more major life activities' per the ADA? If eligible for ADA then there would have to be a follow up to determine if the accommodations requested were reasonable. The time out would be counted toward FMLA and end at twelve weeks but she may still be eligible for more time through ADA. We would have to consult two separate Federal agencies for questions on this associate, as ADA is regulated through the EEOC and FMLA through the Department of Labor."

The witness suggested that the EEOC provide more nuanced examples in its guidance materials to assist employers with compliance. According to Ilukowicz, “regardless of who ‘owns’ each respective piece of legislation, EEOC or DOL, it would be helpful to employers to have coordinated, very concise documents that clearly provide employers what they need to know.”

Ilyse Wolens Schuman, Shareholder with Littler Mendelson can be reached at (202) 423-2223 or ischuman@littler.com for more information.

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