Pregnancy discrimination continues to evolve following the Supreme Court’s 2015 decision in Young v. UPS.1 As anticipated, the U.S. Equal Employment Opportunity Commission (“EEOC”) released an updated guidance, Q&A resource, and fact sheet for small businesses late last month. Legislatures at both the federal and state level have similarly shown interest in increasing protections for pregnant workers.
In late June, the EEOC issued three publications concerning pregnancy discrimination:
The new enforcement guidance “supersedes” the EEOC’s July 2014 guidance on pregnancy discrimination and in particular, amends the agency’s earlier interpretation of disparate treatment and light duty work due to Young v. UPS. EEOC, Enforcement Guidance: Pregnancy Discrimination and Related Issues (June 25, 2015).
Citing to Young, the EEOC provides that among other things, “[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[,]” indicates disparate treatment. Id.
With regard to light duty work and disparate treatment claims, the guidance relies heavily on Young to summarize the McDonnell Douglas framework and highlights that an employee can establish pretext by providing evidence that “[a]n employer [has a] policy of accommodating a large percentage of nonpregnant employees with limitations while denying accommodations to a large percentage of pregnant employees[.]” Id.
The guidance also outlines employer obligations under the Pregnancy Discrimination Act (which amended Title VII), the Americans with Disabilities Act, and other laws; provides examples of what it considers to be lawful and unlawful conduct; and outlines employer best practices.
Congress also took quick action following Young. In June, a group of legislators introduced the Pregnant Workers Fairness Act. The Act seeks to deliver greater clarity regarding the duty of employers to provide reasonable accommodations and strengthen protections against discrimination.
States have likewise adopted increased protections in this context. For example, in 2014, Minnesota adopted the Women’s Economic Security Act,2 which includes, among other things, provisions related to pregnancy accommodations. Florida, meanwhile, amended the Florida Civil Rights Act to incorporate specific references to pregnancy, which went into effect on July 1, 2015.
Steps for Employers
Given the Supreme Court’s decision in Young v. UPS and the ongoing updates in this area, employers may wish to take certain steps to stay abreast of changes:
- Review policies related to reasonable accommodations, leave and time off, break times, discrimination, harassment, and retaliation.
- Review state and local laws. As described above, such laws may impose heightened requirements and restrictions on employers (as is the case in Minnesota).
- Review historical accommodation requests and decision-making to identify any discrepancies in decision-making across different classes of employees.
- Provide training to supervisors, managers, and HR professionals on pregnancy discrimination and how to handle and process accommodation requests.
1 Our discussion of Young v. UPS can be found at http://www.dorsey.com/eu-le-young-v-united-parcel-pregnancy-discrimination-act/.
2 Please visit http://www.dorsey.com/eu-Womens-Economic-Security-Act-WESA/ for Dorsey & Whitney LLP’s article regarding the Women’s Economic Security Act.