Last week, I had the pleasure of presenting with EEOC Regional Attorney in the Chicago District John Hendrickson on the EEOC’s recently drafted Pregnancy Discrimination Enforcement Guidance and how these guidelines will impact the manner in which employers will be required to provide accommodations to its pregnant employees. The session was part of my law firm’s annual employment law conference. If you missed the program, you can access the PowerPoint and audio form our presentation here. It was a great opportunity to discuss the intersection of the Pregnancy Discrimination Act and the American’s with Disabilities Act.
There were a number of key takeaways from our session for employers :
1. Engaging the Employee in the Interactive Process is Essential. The EEOC’s decision to initiate litigation against an employer often hinges on whether the employer is to blame for the breakdown in the interactive process. When a pregnant employee reports complications with her pregnancy and provides documented work restrictions, employers must avoid the temptation to automatically place the employee on a leave of absence, or worse, to terminate her employment. Employers create liability when they jump to these conclusions without first engaging the employee in a discussion about her limitations and what the employer might be able to offer to help the employee remain on the job.
By engaging in the interactive process, the employer (lawfully) forces the employee to identify workplace accommodation while she remains on work restrictions during her pregnancy. The back and forth communication also allows you an opportunity to determine whether there are alternative options to keep the employee on the job instead of shuffling her off on a leave of absence, a personnel decision that likely will raise EEOC’s scrutiny. To minimize your exposure to liability, keep communicating with your employees! The interactive process is essential.
2. Be practical when it comes to light duty. To be clear, the EEOC’s pregnancy discrimination guidance does not mandate light duty programs for employers who don’t maintain such a program. However, if you offer light duty work to employees with work restrictions, the EEOC takes the position that you must offer light duty work to a pregnant employee with similar work restrictions.
One of our case studies focused on a hypothetical employer who offers a 60-day light duty program to all employees who are unable to perform the essential duties of their position due to disability or pregnancy. At the end of 60 days in our hypo, the pregnant employee still cannot return to work. Is the employer free to put the employee on leave at that point? Sure, there may be an argument to do so, but might it be more practical to allow a modest extension of light duty beyond 60 days? As Mr. Hendrickson pointed out, there is no magic answer here, but the interactive process is critical to determine whether alternatives are available.
3. When It comes to telecommuting, even the EEOC sees value in physical attendance at the office. Historically, courts have afforded employers a great deal of deference in making the argument that the employee must be physically present at work to perform her job. Yet, as we have witnessed recently, that tide may be turning. In EEOC v. Ford Motor Company, a federal appellate court found that “advancing technology has diminished the necessity of in-person contact to facilitate group conversations,” and that the employer’s business judgment that physical presence at the workplace is an essential function is but one of several factors that the court will take into account in determining whether telecommuting must be offered as a reasonable accommodation. The Ford Motor Co. case has been reconsidered by this same appellate court, and an en banc decision is expected soon. When it is released, it surely will be the leading case on an employer’s obligation to provide telecommuting as a reasonable accommodation.
In a moment of candor, Mr. Hendrickson recognized the value of having an employee physically present at work to perform their job. Acknowledging his management role vis-a-vis other employees in his own EEOC office, Mr. Hendrickson agreed that there is “an argument to be made” that telecommuting is not the functional equivalent of being present in the office. For instance, in industries such as advertising, the arts and the law, and in engineering, where there is an element of “imagination and creativity,” and Mr. Hendrickson recognized that an employer could effectively argue that face-to-face communication is critical. I appreciated Mr. Hendrickson’s sincerity on this point, and I know my clients in the audience did, too.
4. EEOC is Not Prohibiting Mediation on New Pregnancy Discrimination/Accommodation claims. For those litigators out there, Mr. Hendrickson confirmed that the EEOC is not automatically sending all newly filed pregnancy discrimination and accommodation charges directly to investigation. To the contrary, like other charges, the EEOC will determine on a case-by-case basis whether mediation will be offered. (Of course, the EEOC’s criteria for offering mediation often is a bit murky, but at least Mr. Hendrickson confirmed that there is no blanket policy by EEOC in Chicago against mediation in pregnancy discrimination and accommodation cases.)