Discrimination on the basis of pregnancy, childbirth, or related medical conditions constitutes unlawful sex discrimination under Title VII. The EEOC recently issued new Enforcement Guidance to ensure employers treat women who are impacted by pregnancy or childbirth in the same way as other applicants or employees. The EEOC noted that most of its guidance is unchanged, but portions concerning disparate treatment of pregnant employees and light duty were revised as a result of the March 2015 Supreme Court decision in Young v. United Parcel Serv. Inc.
One focus of the Supreme Court in the UPS case was on equal access to light duty jobs for pregnant employees. The court noted that failure to provide light duty positions to women impacted by pregnancy while providing light duty work to a large number of individuals with other needs “gives rise to an inference of intentional discrimination.”
As a result of the UPS case and recent EEOC guidance revisions, employers should become familiar with what the EEOC considers to be best practice in dealing with pregnancy, including the following:
- Review light duty policies and ensure that they provide pregnant employees access to light duty in the same way it is provided to people with similar limitations
- Keep in mind that policies should detail examples of conduct that constitutes discriminatory behavior based on pregnancy or childbirth
- Ensure policies provide multiple avenues of submitting or following up on a complaint
- Ensure reasonable accommodation policy explicitly details that reasonable accommodations may be available to individuals with impairments related to pregnancy
- Make sure that staff and management promptly respond to all requests for pregnancy-related impairment accommodations and treat requests for accommodation from pregnant workers as requests for accommodation under the ADA, provided there is an impairment
- Disclose information about fetal hazards to all employees and accommodate requests for reassignment if possible.
- Ensure that parental leave is provided to similarly situated men and women
- Consult with employees who plan to take pregnancy and/or parental leave in order to detail how their job responsibilities will be handled in their absence and upon their return
- Ensure that all employees (including women and those affected by pregnancy or childbirth) are given equal opportunity to participate in high responsibility and high-profile work assignments that will enhance their skills and help them advance within the company
- Have a process in place for handling reasonable accommodation requests made by employees with pregnancy-related disabilities and be consistent with those offerings
A complete list of EEOC’s best practices can be found on the EEOC’s website.