Tuesday, July 22, 2014

President Obama Signs Executive Banning Discrimination Based on Sexual Orientation and Gender Identity by Federal Contractors

Yesterday President Barack Obama signed an Executive Order further amending Executive Orders 11478 and 11246.  Executive Order 11478 requires the federal government to provide equal opportunity in federal employment for all persons, to prohibit discrimination in employment because of race, color, religion, sex, national origin, handicap, or age, and to promote equal employment opportunity through a continuing affirmative program in each executive department and agency.  Executive Order 11246 prohibits federal contractors and federally-assisted construction contractors and subcontractors, who do over $10,000 in government business in one year, from discriminating in employment decisions on the basis of race, color, religion, sex, or national origin.  The amendment now prohibits federal contractors from discriminating against employees based on gender identity and sexual orientation.

It is unclear whether this new Executive Order will impose new affirmative action requirements on federal contractors.  The Secretary of Labor is required to prepare regulations implementing the provisions of the Executive Order within 90 days, which will provide further guidance on the obligations imposed by the Order.

So that there's no confusion, this Executive Order only applies to federal contractors and subcontractors who have covered federal contracts.  The Order does not apply to private employers, as there still remains no federal prohibition against discrimination in the workplace based on sexual orientation or gender identity.  Luckily for Wisconsin residents, the Wisconsin Fa

July Edition of the Employment Law Blog Carnival is Live!

The July edition of the wonderful Employment Law Blog Carnival, titled, "The Child of the 90s Edition," is up over at the Ohio Employer's Law Blog, as written by Attorney Jon Hyman.  Check it out now! #ELBC

EEOC's Enforcement Guidance on Pregnancy Discrimination

The Equal Employment Opportunity Commission (EEOC) recently released its Enforcement Guidance on Pregnancy Discrimination and Related Issues (the Guidance), which is essentially a guide for employers and employees on the EEOC's understanding of the law and how it will seek to enforce it, but also attempts to expand the law to provide greatly enhanced protections to pregnant employees.  As most practitioners are aware, the EEOC's enforcement guides aren't law, nor do they create law, but they have considerable implications as they are the agency that upholds the nation's federal anti-discrimination laws.  This Guidance is also important and has received a lot of attention because pregnancy discrimination continues to be a big problem, yet there has not been new legislation to provide further protection for pregnant employees in many, many years.

As was expected by this new Guidance, the EEOC has taken an expansive view of the protections to be afforded pregnant employees.  The Guidance also covered most of the federal workplace laws touching on pregnancy and related conditions, including the Pregnancy Discrimination Act (PDA), the Americans with Disabilities Act (ADA), the Genetic Information Nondiscrimination Act (GINA), the Affordable Care Act (ACA), the Family and Medical Leave Act (FMLA), and Executive Order 13152 (which prohibits discrimination in federal employment based on parental status).  Perhaps the biggest feature of the Guidance is the EEOC's stance that the PDA and the ADA entitle pregnant employees to accommodation.

Specifically, the Guidance states:
The Commission rejects the position that the PDA does not require an employer to provide light duty for a pregnant worker if the employer has a policy or practice limiting light duty to workers injured on the job and/or to employees with disabilities under the ADA.

Recognizing that this is not a position taken by some courts, the EEOC finds any analysis to the contrary "flawed."  The Sixth Circuit, in Latowski v. Northwoods Nursing Ctr. (6th Cir. December 23, 2013), recently took the position that denying a pregnant employee light duty pursuant to a facially neutral policy limiting light duty to employees injured on the job violates the PDA, suggesting a potential shift in courts' analysis of this issue. 

With respect to the ADA and pregnancy as a "disability,"  the Guidance stated that, "[a]lthough pregnancy itself is not an impairment within the meaning of the ADA, and thus is never on its own a disability, some pregnant workers may have impairments related to their pregnancies that qualify as disabilities. . . even though they are only temporary."

So what does this mean for the public?  EEOC Enforcement Guides are more critical to employers because it puts more restrictions on their behavior if they want to avoid potential lawsuits against them by the EEOC or the EEOC finding probable cause that an employee was discriminated against on the basis of their pregnancy.  It is still important for employees to be aware of the EEOC's stance on these laws because it can be used as bargaining power in seeking an accommodation during their pregnancy if an employer currently has policies that seem to run afoul of this new Guidance.