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Updated EEOC Guidance Tightens Pregnancy Discrimination Guidelines in Response to Young vs. UPS Decision

Published by on July 28, 2015

On June 25, 2015, the Equal Employment Opportunity Commission (EEOC) issued an update of its Enforcement Guidance on Pregnancy Discrimination and Related Issues (Guidance), along with a Q & A document and a fact sheet for small businesses. All are available on the EEOC website. The new Guidance was issued by the EEOC in response […]

On June 25, 2015, the Equal Employment Opportunity Commission (EEOC) issued an update of its Enforcement Guidance on Pregnancy Discrimination and Related Issues (Guidance), along with a Q & A document and a fact sheet for small businesses.

All are available on the EEOC website. The new Guidance was issued by the EEOC in response to the U.S. Supreme Court’s decision in Young v. United Parcel Service, Inc.

In Young, the Supreme Court held that an employee stating a claim under the Pregnancy Discrimination Act (PDA) can defeat summary judgment, and thus reach a jury, by providing evidence that the employer accommodates a large percentage of non-pregnant workers while failing to accommodate a large percentage of pregnant workers.

The Supreme Court further held the PDA requires courts to consider the extent to which an employer’s policy treats pregnant workers less favorably than non-pregnant workers who are similar in their ability or inability to work.

The Supreme Court refused to defer to the EEOC’s 2014 EEOC Guidance, after concluding the 2014 Guidance was inconsistent with prior guidelines and had been issued after the Supreme Court had already granted certiorari in the case.

The new EEOC Guidance makes changes to the sections on disparate treatment and light duty as well:

Disparate Treatment: This section now cites Young in support of the Guidance’s additional language that evidence indicating disparate treatment based on pregnancy includes “[e]vidence of an employer policy or practice that, although not facially discriminatory, significantly burdens pregnant employees and cannot be supported by a sufficiently strong justification.”

Light Duty: This section now mirrors the holding in Young. To establish a prima facie case of pregnancy discrimination, an employee must show she belonged to a protected class, she sought accommodation, the employer did not accommodate her, and the employer accommodated others with a similar ability or inability to work.

The employer then may demonstrate a legitimate, non-discriminatory reason for treating the pregnant employee differently than non-pregnant workers similar in their ability or inability to work.

The Guidance now notes that this reason normally cannot consist simply of a claim that it is more expensive or less convenient to accommodate pregnant employees. Even if the employer can assert a legitimate, non-discriminatory reason for the different treatment, the Guidance provides that the employee may demonstrate pretext if the reason is not sufficiently strong to justify the burden on pregnant employees.

The new Guidance states that a policy of accommodating most non-pregnant employees, while categorically denying accommodation to pregnant employees, would present a genuine issue of material fact.

The new EEOC Guidance also deletes a section that provided employers with guidelines on how to treat pregnant employees and persons similar in their ability or inability to work. This section had stated that “[a]n employer may not refuse to treat a pregnant worker the same as other employees who are similar in their ability or inability to work by relying on a policy that makes distinctions based on the source of an employee’s limitations (e.g., a policy of providing light duty only to workers injured on the job.).”

Laconic Lookout:

Employers need to be aware of this new Guidance and ensure that their policies and procedures are in compliance. Employers should treat requests from pregnant workers for light duty the same as they would treat requests from others with similar abilities. Employers should reevaluate their policies or practices if they exclude pregnant workers from light duty, but accommodate similarly situated employees.

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