Recently, the EEOC announced an update to its Enforcement Guidance on Pregnancy Discrimination and Related Issues (“Enforcement Guidance”) to reflect the Supreme Court’s recent decision in Young v. UPS.
The Court in Young articulated a new standard applicable to claims brought under the Pregnancy Discrimination Act (“PDA”), when a plaintiff claims that she has been denied an accommodation for a pregnancy-related work restriction given to others who are not pregnant, but who are similar in their ability or inability to work. Under the new standard, if an employer points to a neutral policy as its legitimate reason for the differential treatment, a plaintiff can demonstrate that the policy is a pretext for discrimination by proving that the policy imposes a “significant burden” on pregnant workers, and that the reasons for the policy are not “sufficiently strong to justify the burden.”
The Enforcement Guidance echoes this language, stating that “[e]mployer policies that do not facially discriminate on the basis of pregnancy may nonetheless violate… the PDA where they impose significant burdens on pregnant employees that cannot be supported by a sufficiently strong justification.” It explains, by way of example, that if an employer provides light-duty work to a large percentage of non-pregnant employees but does not provide light-duty work to pregnant workers, this may “establish that the policy or practice significantly burdens pregnant employees.” If the employer’s reasons for its policy or practice do not justify this burden, it will give rise to an inference of discrimination. The Enforcement Guidance further explains that a plaintiff can establish a prima facie case of discrimination by showing that she is pregnant, that she requested an accommodation, that her request was denied, and that her employer accommodated others who were “similar in their ability or inability to work.”
With these changes, the new Enforcement Guidance supersedes the version that the EEOC first issued in July 2014 shortly after the Supreme Court agreed to hear the Young case. Other than the updates to reflect the Supreme Court’s holding, no other changes were made to the original version, which provides guidance on topics such as lactation and breastfeeding, prohibition of forced leave, and access to health insurance, among others. However, the changes reflect the EEOC’s heightened focus on issues of pregnancy discrimination and accommodation.
Note: Under the ADA, an employer may have to provide leave in addition to that provided under its normal leave policy as a reasonable accommodation for someone with a pregnancy-related impairment that is a disability.
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