Client Bulletin: Recent Developments in Non-Discrimination Law

By Catherine Guttman-McCabe, Partner

In July, there have been significant developments in non-discrimination law in the areas of sexual orientation, gender identity, and pregnancy discrimination.

Sexual Orientation and Gender Identity:
New protected Classes for Federal Contractors and Subcontractors

On July 21, 2014, President Obama issued an Executive Order, prohibiting employment discrimination in federal employment and by federal contractors based on sexual orientation or gender identity.  The Executive Order, which amends Executive Order 11246, contains no religious exemption and President Obama has directed the Labor Department to issue regulations within 90 days.  Previously, the EEOC ruled that discrimination against gay, lesbian, bisexual and transgender individuals is a form of sex discrimination and thus violates Title VII of the Civil Rights Act of 1964 (Title VII).  The Executive Order, however, creates new federally protected classes for sexual orientation and gender identity.

Until now, sexual orientation and gender identity were only protected classes in the laws of some states and municipalities.  Eighteen states and Washington D.C. currently prohibit discrimination based on sexual orientation and gender identity.  Three additional states prohibit discrimination based on sexual orientation, but not gender identity. Although the Executive Order applies only to federal contractors and sub-contractors (approximately 20% of the U.S. workforce), it expands the geographic reach of sexual orientation and gender identity as protected classes.

The Employment Non-Discrimination Act, which applies to all workers, but which contains a religious exemption, has stalled in the House of Representatives after passing in the Senate.

Pregnancy and Related Medical Conditions:
EEOC Advises Broad Coverage Under Two Federal Statutes

On July 14, 2014, the EEOC issued a new 33-page guidance on pregnancy discrimination in employment under both the Pregnancy Discrimination Act and the Americans with Disabilities Act, which apply to nearly all employers.  The Pregnancy Discrimination Act (PDA) established that discrimination based on pregnancy, childbirth, or related medical conditions is a form of sex discrimination prohibited by Title VII.  The EEOC Guidance states that the PDA prohibits discrimination based on current and past pregnancy, as well as potential or intended pregnancy (including fertility treatments and use of contraception), and medical conditions related to pregnancy (including lactation, breastfeeding, and abortion).  The Guidance also addresses disparate treatment, disparate impact and harassment cases based on pregnancy.

The Americans with Disabilities Act, in addition to prohibiting discrimination based on disability, limits when and how employers can make medical inquiries or require medical examinations, and requires employers to provide reasonable accommodations for employees or applicants with disabilities.  Although pregnancy is not a disability, pregnant workers may have impairments that constitute disabilities, and are not excluded from the protection of the ADA.

The EEOC Guidance was issued the same month in which the Supreme Court granted certiorari to consider whether, and in what circumstances, the Pregnancy Discrimination Act requires an employer that provides work accommodations to non-pregnant employees with work limitations to provide work accommodations to pregnant employees who are “similar in their ability or inability to work.”  Young v. United Parcel Service, Inc., 707 F.3d 437 (4th Cir. 2013), cert. granted, 81 U.S.L.W. 3602 (U.S. July 1, 2014) (No. 12-1226).

The EEOC Guidance lists best practices for employers to comply with the PDA and ADA, including:

  • Develop, disseminate, and enforce a strong policy based on the requirements of the PDA and ADA;
  • Train managers and employees regularly about their rights and responsibilities related to pregnancy, childbirth, and related medical conditions;
  • Conduct employee surveys;
  • Respond to pregnancy discrimination complaints efficiently and effectively.
  • Protect applicants and employees from retaliation.
  • Review all hiring, promotion, leave, benefit, compensation, and other policies and procedures to ensure non-discrimination;
  • Have a process in place for expeditiously considering reasonable accommodation requests; review policies and procedures related to accommodations; and train managers.

We are available to answer questions; review employment policies and procedures; and provide training.

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This bulletin is not intended as legal advice.  Readers should seek professional legal counseling before acting on the information it contains.