EEOC ISSUES THREE NEW RESOURCE DOCUMENTS CONCERNING EQUAL PAY AND PREGNANCY DISCRIMINATION IN THE WORKPLACE

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By: Carol G. Schley, Clark Hill PLC

In connection with the White House’s recent “United State of Women Summit,” during which President Obama opined that U.S. workplace policies “still look like they’re straight out of Mad Men,”[1] the EEOC issued three new resource documents which can be found at https://www.eeoc.gov/eeoc/newsroom/release/6-14-16.cfm.

The first document, directed to employees, is entitled “What You Should Know: Equal Pay and the EEOC’s Proposal to Collect Pay Data.” This document summarizes the EEOC’s recent efforts to amend the EEO-1 form to require employers to disclose data on pay and hours worked.  According to the EEOC, this additional data would provide the EEOC, the OFCCP and the Department of Labor “with insight into pay disparities across industries and occupations and strengthen federal efforts to combat discrimination.”  In other words, it would help these agencies in going after employers for alleged violations of federal law, including the Equal Pay Act.  The revised EEO-1 form has not yet taken effect, but the EEOC anticipates it will be in use by September 2017.  However, the U.S. House Appropriations Committee recently approved funding to the EEOC with a proviso that the funds could not be used to implement a revised EEO-1 form. It thus remains to be seen whether the EEO-1 form will be amended as desired and by the date anticipated by the EEOC.

The second resource document issued by the EEOC, entitled “Legal Rights for Pregnant Workers under Federal Law,” reminds employees that pregnancy-based discrimination and harassment are illegal under federal law.  It also informs employees that they may be entitled to a reasonable workplace accommodation for any pregnancy-related issues under the Pregnancy Discrimination Act and the Americans with Disabilities Act.  According to the EEOC, examples of such accommodations include “altered break and work schedules (e.g., breaks to rest or use the restroom), permission to sit or stand, ergonomic office furniture, shift changes, elimination of marginal job functions and permission to work from home.”  The document also states that an employer may be required to provide unpaid leave as an accommodation where an employee is unable to work at all for pregnancy-related reasons.

The third resource document, “Helping Patients Deal with Pregnancy-Related Limitations and Restrictions at Work,” guides health care providers on how to assist their patients in obtaining workplace accommodations for a pregnancy.  In this regard, the EEOC advises health care workers to provide “plain language” documentation to employers, which the EEOC said should include the health care provider’s professional qualifications, the nature of the employee’s condition, the employee’s functional limitations, the need for an accommodation and suggested accommodations for the employee.

In its Strategic Enforcement Plan, the EEOC has identified equal pay and pregnancy discrimination as two of many issues on which the EEOC is focusing its resources.  The three guidance documents recently issued by the EEOC demonstrate its ongoing attention to these issues.  Employers are advised to ensure their policies and procedures regarding employee compensation and pregnancy, including requests for pregnancy-related accommodations, are compliant with governing federal (and state) laws, in order to avoid employee claims on these issues or unwanted attention from the EEOC.

Carol G. Schley is a member of the Detroit SHRM Legal Affairs Committee and an attorney at the law firm Clark Hill PLC.  She can be reached at cschley@clarkhill.com or (248)530-6338.

Detroit SHRM encourages members to share these articles with others, inside and outside their organization, as long as its name and logo, and the author’s information, is included in the re-post of the article. June, 2016

See www.whitehouse.gov/the-press-office/2016/06/14/remarks-president-united-states-women-summit.