EEOC Issues New Guidance on Pregnancy Discrimination

On Monday July 14, 2014, the Equal Employment Opportunity Commission (“EEOC”) issued new enforcement guidance on pregnancy discrimination. The guidance was issued by the EEOC on a 3-2 vote.

This guidance updates and replaces the Commission’s 1983 guidance. The guidance focuses on one of the priorities outlined in the EEOC’s Strategic Enforcement Plan—addressing the interaction between the Pregnancy Discrimination Act (“PDA”) and the Americans with Disabilities Act (“ADA”), as amended in 2008. The biggest change in the guidance is an interpretation of the PDA that would require employers to provide reasonable accommodation to employees who have work restrictions because of pregnancy even if the employee does not qualify as disabled or is not regarded as disabled under the ADA.

The issue of accommodation under the PDA is the subject of a case currently before the U.S. Supreme Court, Young v. UPS, brought by a pregnant UPS worker who was denied light duty work and let go.

The guidelines have some new provisions:

• Routine pregnancy-related conditions that did not previously rise to the level of disability, such as back pain, increased water intake and lifting restrictions, can now be considered disabilities covered by the Americans with Disabilities Act, which entitles workers to accommodations at work.

• Lactation is now considered a medical condition.

• Employers can no longer deny reasonable accommodations to pregnant workers who are unable to lift heavy objects or need more bathroom breaks.

The guidelines also affirm some preexisting law:

• Medical conditions related to pregnancy that are otherwise considered disabilities, such as gestational diabetes and preeclampsia, must be reasonably accommodated.

• Employers are still prohibited from demoting or firing employees when they announce their pregnancies, intent to become pregnant or pregnancy-related medical conditions.

• Equal access to benefits including light duty, leave, health care, and various other benefits. The EEOC included a statement that “Employers can violate Title VII by providing health insurance that excludes coverage of prescription contraceptives, whether the contraceptives are prescribed for birth control or for medical purposes.” This provision may need to be clarified in light of the Supreme Court’s decision in the Hobby Lobby case.

In addition, the EEOC is calling for equal parental leaves for both mothers and fathers for bonding, although the guidelines suggest giving mothers additional "child birth" leave to recover physically. (At present, both mothers and fathers qualify for unpaid leave under the Family and Medical Leave Act if they have worked full time for at least one year for a large company, but fathers tend to have little if any paid parental leave compared to mothers, which the EEOC says is discriminatory.)

The EEOC has issued a fact sheet for small businesses, as well as a Q-and-A page in conjunction with the guidelines. The links are:



The EEOC guidelines mark a growing trend toward protections for pregnant workers, as seen in recent state and local legislation. The impact for employers at this point, however, is unknown until the Supreme Court hears Young v. UPS during the 2014–2015 term.

Nonetheless, employers should consider whether revising and updating their pregnancy accommodation policies to comply with the EEOC guidance is a best business practice apropos of the newly issued guidance.

Contact: Anne Prenner Schmidt


Tedesco to Speak at Meeting of the Ohio State Bar Association Corporate Counsel Section

Roetzel attorney Klodiana Tedesco is speaking on Friday, July 11, 2014, at the monthly teleconference meeting of the Ohio State Bar Association's Corporate Counsel Section.  Ms. Tedesco will address the OSBA's Corporate Counsel membership on the topic of  "Employment Eligibility Verification," including a discussion of the new Form I-9, trends and new issues in immigration law, what to expect during an I-9 audit and comments on the E-verify program.

Klodiana B. Tedesco


Unions Not Dealt the Blow Feared by Many

The Supreme Court dealt a limited blow to organized labor on June 30, 2014 by holding in Harris v. Quinn that home health care workers in Illinois cannot be compelled to financially support a union they don’t wish to join. But the court declined to strike down a decades-old precedent that required many public sector workers to pay union fees. Writing for the 5-to-4 majority, Justice Alito sharply criticized a 1977 precedent, known as Abood, which granted states the right to compel union dues. Alito called that ruling “questionable” and “anomalous,” all but inviting a further challenge in the future. He was joined in his opinion by Chief Justice John Roberts and Justices Thomas, Scalia and Kennedy.

The case was initially brought by eight Illinois workers who provided home care to Medicaid recipients. Several plaintiffs were mothers who, helped by Medicaid, were personal assistants to their disabled children and opposed joining the union and paying union fees.

The plaintiffs asked the court to overrule a 1977 decision (Abood) that declared that government employees could be required to pay fees to unions for representing them and administering their contracts even if they disagreed with the unions’ positions.

Illinois and more than 20 other states require government employees, whether or not they opt to join the union at their workplace, to pay “fair share” fees to finance the union’s activities, like collective bargaining, to prevent freeloading and ensure “labor peace.” But the court in Abood held that workers could not be required to help pay for activities that were purely political, like campaigning for particular candidates.

The National Right to Work Legal Defense Foundation represented the plaintiffs and argued that Illinois was violating the First Amendment by requiring that home-care aides pay compulsory fees to unions even when they disagreed with the unions’ positions. The foundation argued that most of what public-sector unions did was inherently political, partly because they rely on the government to pay their members’ wages and benefits — and they often lobby the government to increase compensation.

Justice Alito wrote that home-care aides who typically work for an ill or disabled person, with Medicaid paying their wages, should be classified as partial public employees and should not be treated the same way as public schoolteachers or police officers who work directly for the government.

Union leaders had feared that the justices might strike down those state laws as unconstitutional. The justices did not go that far. They issued a more narrow ruling that the home health care workers at issue in the case are not “full-fledged public employees” because they are hired and fired by individual patients and work in private homes, though they are paid in part by the state, via Medicaid.

Because they are not truly state employees, the justices decided these workers did not have to pay union dues.

Still, the fairly narrow ruling is a blow to the Service Employees International Union, the American Federation of Teachers and other unions that have organized hundreds of thousands of home health workers in states including Illinois, California and Connecticut. Those workers can now decide whether they want to support the union financially. This can cause discord and schisms in work forces as Labor leaders regard workers who do not pay the fees as freeloaders, since they benefit from the union’s work negotiating contracts but do not pay their fair share to cover the expenses.

Justice Alito rebuffed the argument by the State of Illinois that the Abood decision should be controlling in this case, saying it should apply only in cases involving full-fledged public employees like teachers or firefighters.

The majority opinion showed uneasiness with decades of laws and judicial rulings that required government workers who choose not to join unions to nonetheless pay union fees on the ground that unions’ efforts on collective bargaining and grievances benefit members and nonmembers alike.

In the dissenting opinion, Justice Kagan attacked the majority’s concept of partial public employees, saying that Illinois has sole authority over much of the home-care aides’ terms and conditions of employment.

“Today’s opinion takes the tack of throwing everything against the wall in the hope that something might stick,” she wrote. “A vain hope, as it turns out.”

Anticipating a future attack on Abood, Justice Kagan devoted much of her dissent to defending Abood and its upholding government efforts to prevent free-riding. Saying that the majority underestimated that problem, she wrote, “Union supporters (no less than union detractors) have an economic incentive to free ride.”

The Harris decision seems consistent with a broader trend in American labor: independent contractors and temp agencies are just a few examples of how non-traditional employees tend to be harder to unionize and have fewer rights. In designating home care workers "quasi public" another category of employees who don't “deserve” the same bargaining powers as "full-fledged" ones are created, Alito has furthered the idea that employee rights depend not on the kind of work one does, but rather on who pays the salary.



Supreme Court Rules That President Obama's NLRB Recess Appointments Were Invalid

The United States Supreme Court unanimously ruled on June 26, 2014 that President Obama’s three recess appointments to the National Labor Relations Board (NLRB) were unconstitutional and therefore, invalid. The Court’s ruling likely means that hundreds of cases the NLRB decided in 2012 and 2013, while the recess appointees were seated, are now invalid. Many of the affected cases proved controversial, including a decision protecting workers from discipline for criticizing their employer on social media sites and a decision affording unions greater rights in cases of employee discipline.

The controversy began in January 2012 when President Obama named three new members to the NLRB, which at that time was lacking a quorum because of Senate opposition to the President’s appointees in the Senate. President Obama invoked his presidential power to make recess appointments to the NLRB while the Senate was away on holiday break pursuant to a provision of the Constitution which allows presidents to fill agency and other vacancies during a recess without Senate confirmation. Presidents have historically used this power to bypass the Senate confirmation process and to install their appointees during periods when the Senate was not in session.

Noel Canning, a soft drink bottler based in Washington, subsequently appealed an adverse NLRB decision on the grounds that President Obama unlawfully appointed the NLRB members while the Senate was still in session. Although the Senate had been on holiday break when President Obama made the appointments, it was still holding “pro forma” sessions, during which it briefly gaveled in and out every three days without conducting any business. The D.C. Circuit Court of Appeals agreed with Noel Canning and held that President Obama lacked the authority to make the appointments. The D.C. Circuit went further and narrowly defined a “congressional recess” to include only the period between the year-long formal sessions of Congress, rather than a short break in proceedings.

On further appeal, the Supreme Court agreed that President Obama’s appointments were unconstitutional, but rejected the D.C. Circuit Court’s narrow definition of a “congressional recess.” The majority opinion held that presidents may only exercise their appointment powers during congressional recesses of ten days or more.

The Court’s decision will now force the NLRB to revisit the rulings made by the invalidly appointed Board members. Given the Board’s current pro-union majority, however, it is unclear whether such revisiting will make much of a difference. In response to the Supreme Court’s decision, NLRB Chairman Mark Gaston Pearce commented: “We are analyzing the impact that the Court’s decision has on Board cases in which the January 2012 recess appointees participated. Today, the National Labor Relations Board has a full contingent of five Senate-confirmed members who are prepared to fulfill our responsibility to enforce the National Labor Relations Act. The Agency is committed to resolving any cases affected by today’s decision as expeditiously as possible.”

Roetzel & Andress will continue to monitor the fallout from the Court’s decision and its impact on both union and non-union employers.

Nathan Pangrace


NFL / Jimmy Graham Grievance Highlights Importance of Social Media, Arbitration in Employment Arraignments

The New Orleans Saints Tight End Jimmy Graham could be facing the loss of over $5 million dollars, all due to his twitter page. The All-Pro football player is in the middle of an ongoing arbitration process with the NFL Management Council over whether or not his official position on the team is as a Tight End or a Wide Receiver. Graham was recently ‘franchise tagged’ by the Saints, meaning he has to play the 2014 season under a one-year contract. The Saints franchise tagged Graham as a Tight End, his official position on their roster, meaning he will be owed roughly $7 million dollars this season. However, Graham argues that he lines up as a Wide Receiver a majority of the time, meaning he should be owed the $12.3 million that a franchise tagged wide receiver would get.

Among the key pieces of evidence the Saints will present is that Graham refers to himself as “New Orleans Saints Tight End #80” on his twitter page, an admission that could cost him nearly $5 million dollars if the arbitration rules in favor of the NFL. This situation represents an important, two-fold takeaway for employers and employees.

First, it highlights again the importance of caution with social media postings. Even something as innocuous as a twitter bio can come back to haunt an individual, even if it isn’t to the tune of $5 million dollars per year. This caution needs to be exercised by both employers and employees alike.

More importantly, the ongoing grievance procedure highlights the usefulness of arbitration clauses for employers. Even if an employee is not due the millions that an NFL player would receive, a well-crafted arbitration clause in an employment contract would make potential litigation far less costly and time consuming, as it would channel certain employee claims directly to binding arbitration, as opposed to lengthy court litigation. 

Contact: Marcus Pringle

Obama Administration Announces Executive Order Protecting LGBT Employees of Federal Contractors

Last week, the White House announced that President Obama plans to sign an executive order barring federal contractors and subcontractors from discriminating on the basis of sexual orientation or gender identity.  The order is expected to be finalized in the coming weeks.

According to the Center for American Progress, federal contractors legally bound to comply with the executive order employ approximately 22% of all U.S. civilian workers. That means that nearly a quarter of the American workforce will be entitled to LGBT workplace protections, once President Obama signs the order.  There continue to be 29 states that offer no employment protections on the basis of sexual orientation and 32 with no protections based on gender identity.  Many LGBT workers in those states will now have workplace protections for the first time ever. 

The president’s executive order would stipulate that contracts with the federal government worth more than a certain amount – $10,000 is the general threshold – require the cosigner to have a policy against LGBT discrimination.  In other words, if a company wants to do business with the federal government, the executive order will require that company to have internal policies and rules prohibiting LGBT discrimination.

Last year, the Senate passed a version of the Employment Non-Discrimination Act (ENDA) – which would ban all employers from firing, refusing to hire, or otherwise discriminating against any employee on the basis of sexual orientation or gender identity – but its chances of passing the Republican-controlled House remain slight.  The latest version of the ENDA includes a religious freedom exemption for employers; meaning that an employer will be exempt from the ENDA if the ban on sexual orientation discrimination violates the religious beliefs of the employer.  It will be interesting to see if the executive order includes any similar type of religious freedom exemption.   

It will also be interesting to see if the Supreme Court’s decision in Sebelius v. Hobby Lobby affects the executive order.  Later this week or early next week the Supreme Court is expected to announce its decision in the Sebelius v. Hobby Lobby case.  That decision will determine whether for-profit, private corporations have religious freedom rights.  If the Court rules in favor of Hobby Lobby and finds that corporations do have religious freedom rights, then private employers will have standing to sue the federal government for requiring them to engage in practices that violate the religious beliefs of their owners – whether that’s providing contraception or ruling out potential employees, or discriminating against current ones, based on their sexual orientation or gender identity.  If the Supreme Court does rule in favor of Hobby Lobby, it is likely that some company (ies) will challenge the executive order on the basis of religious freedom and discrimination.  The challenging company (ies) will argue that the religious beliefs of their owner(s) would be violated by a policy that prohibits sexual orientation discrimination, and therefore the executive order has a religious based disparate impact on them by making them ineligible for federal contracts.

Stay tuned for further updates on these evolving areas of employment law. 

Contact: Alex Kipp