On June 25, 2015, the Equal Employment Opportunity Commission (EEOC) issued updated enforcement guidelines regarding the Pregnancy Discrimination Act (PDA) in response to the U.S. Supreme Court’s recent decision in Young v. United Parcel Services, Inc., 135 S. Ct. 1338 (2015). In Young, the Court declined to give special, controlling weight to the July 2014 EEOC guidelines, finding the guidance was inconsistent with the EEOC’s prior positions, and the EEOC did not explain the basis for the guidance.
In Young, the Supreme Court held a plaintiff in a PDA action may create a genuine issue of material fact as to whether an employer’s policies impose a significant burden on pregnant employees by providing evidence that the employer accommodates a large percentage of nonpregnant 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 nonpregnant workers who are similar in their ability or inability to work.
The EEOC’s New Guidance
The EEOC’s new guidance makes changes to the section on disparate treatment and a section on light duty. It also deletes a section that gave guidance to employers on how to treat pregnant employees and persons similar in their ability or inability to work.
The revised section on disparate treatment adds an example from Young of evidence that would indicate disparate treatment based on pregnancy. The guidance provides: “Evidence of an employer policy or practice that, although not facially discriminatory, significantly burdens pregnant employees and cannot be supported by a sufficiently strong justification” indicates disparate treatment based on pregnancy.
The prior guidance on light duty required employers to provide light duty to pregnant workers on the same terms as employees injured on the job who are similar to pregnant workers in their ability or inability to work. The new guidance mirrors the Supreme Court’s holding in Young. To establish a prima facie case of pregnancy discrimination, an employee must show she was a member of 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, nondiscriminatory reason for treating the pregnant employee differently. The guidance 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 meets the showing for a legitimate, nondiscriminatory reason, the employee still may demonstrate pretext if the reasons are not sufficiently strong to justify the burden on pregnant employees. For example, a policy of accommodating most nonpregnant employees with lifting limitations, while categorically failing to accommodate pregnant employees with lifting limitations, may give rise to an inference of intentional discrimination.
The new guidance also deletes a section from the previous guidance about 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.).” This section was deleted in its entirety, as it is addressed by the guidance on light duty.
Read the full text of the EEOC’s revised enforcement guidance is available here.
What Employers Need to Know
Courts have an obligation to follow EEOC guidelines only to the degree that they recognize the “persuasive power” of the guidelines. The EEOC’s new guidance, however, closely follows the Supreme Court’s holdings in Young. Employers need to be aware of this new guidance and ensure their policies and procedures are compliant. When evaluating requests for light duty from pregnant workers, employers should treat those workers the same as they would treat others with similar abilities, including those with work-related injuries. If an employer categorically excludes pregnant workers from light duty while accommodating similarly situated employees with on-the-job injuries, the employer should revisit this practice.
If you have any questions regarding the EEOC’s new guidance or your company’s policies, please contact your Kutak Rock LLP attorney or a member of our Employment Law Practice Group.