EEOC's "emerging issues": LGBT rights, and accommodations for pregnant women

The Equal Employment Opportunity Commission issued yesterday its draft Strategic Enforcement Plan. If you don't have time to slog through all the introductory material, you won't miss a thing if you skip right to Section III (Priorities). The agency proposes that its priorities will be

*Systemic discrimination cases involving recruitment and hiring. No big surprise there, although the EEOC has taken a beating from some federal courts for pursuing "systemic" cases that have no merit.

*Immigrant/migrant worker rights.

*Retaliation and harassment. (Yawn.)

*"Emerging issues" (uh-oh), which consist of the following:

By emphasizing "emerging issues," is the EEOC meditating mischief?

**The ADA Amendments Act. No big surprise here -- this law is a potential bonanza for the federal government, since the amended ADA classifies virtually every person with a medical condition as "disabled."

**LGBT (lesbian-gay-bisexual-transgender) coverage under Title VII. This one is worthy of more comment. The EEOC is hamstrung because there is currently no federal law prohibiting discrimination on the basis of these characteristics. But some federal courts have found that Title VII's sex discrimination provisions also ban "sex stereotyping," which can include discrimination against transgendered individuals, "feminine" men and "masculine" women, and perhaps on the basis of sexual orientation. Congress has thus far resisted enacting a law that specifically protects against discrimination based on these characteristics, but in the meantime courts and state and local governments have stepped in to fill the gap -- either through expansive interpretations of Title VII or through the enactment of state laws and city ordinances prohibiting this type of discrimination. Now it looks like the EEOC is going to do its part. If the federal Employment Non-Discrimination Act ("ENDA") ever passes, look for very aggressive enforcement activity from the EEOC.

*Reasonable accommodations for pregnant women. This is more expansion under Title VII, which bars discrimination on the basis of sex, including pregnancy, but does not require reasonable accommodations. The ADA doesn't help pregnant women much, either, because it specifically provides that normal pregnancy is not a "disability." The EEOC's strategy appears to be to impose a reasonable accommodation requirement through the back door by requiring employers to treat pregnant women the same way they treat employees with temporary medical conditions, which could mean providing light duty. I believe (hope) most employers are already doing this. The EEOC says it is particularly concerned about pregnant women being "forced onto unpaid leave after being denied accommodations routinely provided to similarly situated employees."

Photo credit: "Meditating Mischief." Painting by Philip Hoyall, photo on Wikimedia Commons (public domain).

Visit the Employment and Labor Law Insider for additional insights from Robin Shea, a partner with the national labor and employment law firm Constangy, Brooks & Smith, LLP.

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