In October, the Supreme Court called for the Solicitor General’s response in the case of Young v. United Parcel Service, which considered whether employers should treat pregnancy-related limitations similarly to other non-pregnancy conditions. In its brief, the United States opposed the cert grant, in part because the EEOC was considering “new enforcement guidelines”:
Finally, as noted at p. 8, supra, the EEOC is currently considering the adoption of new enforcement guidance on pregnancy discrimination that would address a range of issues related to pregnancy under the PDA and the ADA. The publication of such guid- ance should clarify the Commission’s interpretation of those statutes with respect to policies like the one at issue in this case, thus diminishing the need for this Court’s review of the question presented at this time.
The WSJ reported that the EEOC has issued such new “enforcement guidance”:
The Americans with Disabilities Act, passed in 1990, has always had the potential to morph into a legal monster for employers. In 2008 Congress amended and expanded the act substantially, arguing that the Supreme Court’s interpretations of “disability” were too narrow. Then the Obama Administration arrived, and you know what that means: Who needs Congress?
On a straight 3-2 party-line vote July 14, the Equal Employment Opportunity Commission voted new “enforcement guidance” rules, which define pregnancy as a workplace disability.
Even after the 2008 amendments, the ADA at no point defines pregnancy as a “disability.” To end-run this fact, the agency discovers pregnancy’s “impairments.” The EEOC’s guidelines argue, “Although pregnancy itself is not a disability, impairments related to pregnancy can be disabilities if they substantially limit one or more major life activities.” Morning sickness, for example, would become a qualifying impairment under the ADA.
The WSJ notes the history:
In May, Solicitor General Donald Verrilli counseled the Supreme Court not to accept certiorari on Young v. United Parcel Service, a case that addresses the rights of a pregnant woman who couldn’t perform her job functions and asked the shipping company for special treatment. Mr. Verrilli told the Justices that the EEOC was working on “new enforcement guidance” and so the Justices should wait until the bureaucrats weigh in.
On July 1, the Supreme Court took the case. Two weeks later, the Obama EEOC issued its pregnancy guidelines. Effectively, the Obama Administration is using the EEOC to deliver marching orders to the High Court.
These strategies don’t just happen. On July 20 foremost Obama White House adviser Valerie Jarrett published a piece on CNN’s website promoting the EEOC’s pregnancy guidelines.
This could moot the Court’s cert in grant in Young. Stay tuned for a possible DIG.