Last month, the Equal Employment Opportunity Commission (EEOC), responsible for enforcing federal laws related to workplace discrimination, issued new enforcement guidance on pregnancy discrimination. The Commission issued the guidance to explain more fully the requirements of the Pregnancy Discrimination Act of 1978 (PDA), and to discuss the implications of the Americans with Disabilities Act (ADA) regarding pregnant women.
According to the press release, it is an “update of longstanding EEOC policy” that takes into account the more than 30 years of “significant developments in the law” since the last major update in 1983.
Abortion is discussed in the guidance under two aspects – as a “medical condition related to pregnancy” and in terms of health insurance coverage. In both aspects, abortion is treated neutrally; that is, it protects the woman’s decision, whatever that may be, from any workplace pressure to abort or not abort her child, and it makes clear that employers need not cover abortions in their health insurance policy except to save the life of the mother, but also that nothing precludes the company from covering abortions.
The guidance states, “For example, it would be unlawful for a manager to pressure an employee to have an abortion, or not to have an abortion, in order to retain her job, get better job assignments, or stay on a path for advancement.” [emphasis added]
This clear language explicitly obviating an employer’s pressure to abort in particular appears to be original to the guidance. Though Title VII of the Civil Rights Act of 1964 (to which the PDA is an amendment) already implies protection of women against abortion-related pressures as it falls under discrimination “because of sex” or “on the basis of sex,” Title VII only explicitly mentions abortion from the angle of health insurance coverage.
Even a Q&A document for the PDA only explains that it is unlawful for a manager to discriminate against a woman if she has had an abortion (See Q. 34, p. 203). There is no explicit treatment on the flipside of discrimination against a woman who does not want an abortion but is being pressured by her manager to have one.
Why, then, the additional clarification at this time? The most obvious answer is that it is needed.
“The most dramatic examples [of pregnancy discrimination] are the steady stream of stories, both through the hotline and the case law, where pregnant women are given a choice between having an abortion or getting fired. And these are still amazingly common. As I talked both to plaintiffs and to defense-side lawyers, both urged me to tell you that more outreach is needed in this arena.”
These words were spoken by Joan Williams, a panelist at the February 2012 EEOC public meeting of stakeholders that was referenced in the press release. Williams, a law professor and Director of the Center for WorkLife Law at the University of California’s Hastings College of the Law, called attention to what the EEOC probably already knows from investigating the thousands of pregnancy discrimination complaints received each year.
In Williams’ written testimony is an enumeration of actual workplace abortion-pressure cases. Though Williams also articulated that “[w]omen should have access to abortions when they need them,” she concluded definitively at this meeting that “[a]s troubling as it is to say it, a clear statement from the EEOC that employers cannot insist that a woman have an abortion in order to keep her job would be a real step forward in a country where family values have played such an important role in the national discourse.” It seems that the EEOC agrees.
On another note, the newly issued guidance is not without controversy. It passed through a split Commission in which two of five members – Commissioners Constance Barker and Victoria Lipnic – released dissenting statements. Their main complaint is that the timing of the release jumped the gun in deciding whether an employer is required under the PDA and ADA to provide “reasonable accommodation” for women with pregnancy-related impairments. The new guidance says yes, but the Supreme Court is slated to decide exactly this next year with Young v. United Parcel Service.
Commissioner Lipnic said, “Insofar as these issues – of central importance to the Guidance – will soon be decided by the Court, I think it is unwise of the Commission to issue guidance at this time, potentially setting forth standards and practices for employers that may well be mooted in the very near future depending on how the Court decides Young.”
Likewise, Commissioner Barker stated, “If our interpretation of the PDA does not correspond exactly with the Court’s decision, we will have provided an incorrect interpretation on a very significant issue that the public will rely on…I would hope that this is the last time this Commission elects to jump ahead of the U.S. Supreme Court and that this is the last time the Commission fails to be transparent in its actions.”
It will be interesting to see if and how the EEOC’s guidance will need to be modified in light of Young in the coming year. In any case, the new additional language protecting a woman from her manager’s pressures to abort her unborn child or be fired is positive.
LifeNews Note: Genevieve Plaster is a research assistant at Charlotte Lozier Institute.