EEOC Issues Revised Enforcement Guidance on Pregnancy Discrimination and Related Issues
This Guidance issued June 25, which can be found at http://www.eeoc.gov/laws/guidance/pregnancy_guidance.cfm
revises the Guidance previously issued by the EEOC in 2014 on this subject and sets out a framework for determining how far employers must go to accommodate a pregnant employee.
The Guidance is tailored to track the Supreme Court's ruling in Young v. United Parcel Serv., Inc. in which the Court held that, although a policy of providing light duty only to certain workers was facially neutral, it could still violate the Pregnancy Discrimination Act when the employer failed to provide the same accommodations to pregnant workers as to other similarly situated employees.
While most of the Guidance remains unchanged from the 2014 version, certain portions include revisions, most notably those regarding disparate treatment of pregnant workers and light duty assignments for pregnant workers.
Specifically, the Guidance provides 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."
The Guidance provides, 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 this practice do not justify the burden on pregnant employees, it will create an inference of discrimination.
Employers should audit their written policies and actual practices to ensure that pregnant workers are afforded the same accommodations in similarly-situated non-pregnant workers. In addition, employers should consult with their counsel when addressing a pregnant worker request for accommodation.