The EEOC issued updated guidance with regard to the agency’s enforcement of discrimination under the Pregnancy Discrimination Act (“PDA”). You might recall that the EEOC originally issued guidance in the summer of 2014. In that original guidance, the EEOC took the position that the PDA requires employers to make accommodations to pregnant workers in the same manner that it does to other similarly situated workers. Thus, if an employer had a light-duty program it could not exclude pregnant works from that program, even if the employer historically reserved light-duty positions for certain categories of employees, such as those injured on the job. 

This year, the Supreme Court issued its decision in Young v. UPS, which addressed some of the same issues the EEOC guidance attempted to clarify. In that case, Peggy Young was a delivery driver for UPS. When she became pregnant, her doctor placed her on lifting restrictions which would interfere with her ability to do her job, so Young requested light duty from UPS. UPS only provided light-duty work for certain categories of employees – those injured on the job, those with a disability, and those who lost their federal driving certifications. Since pregnancy didn’t fall within any of those three categories, UPS denied Young’s light-duty request and place her on leave without pay or benefits. 

Young sued under the PDA, arguing that UPS’s actions constituted sex discrimination based on her pregnancy. Young cited to the provision of the PDA that requires employers to treat pregnant women the same as non-pregnant employees or applicants who are similarly affected in their ability or inability to work. Young argued that during her pregnancy she was similar in her ability or inability to work to those who were injured on the job, who had a disability, or who lost their federal driving certification. Therefore, she should have been granted light duty like those categories of non-pregnant employees. UPS argued that it should be allowed to consider other legitimate factors (e.g., whether an employee was injured on the job) when making accommodations to employees. And, as long as those factors did not take an individual’s pregnancy into consideration, application of those other factors met the requirement of treating pregnant and non-pregnant employees alike, even if it resulted in a pregnant employee being denied the accommodation because she did not meet one of those other factors (e.g., she wasn’t injured on the job). 

In deciding this issue, the Supreme Court took a “middle-of-the-road” approach, rejecting the arguments by Young, UPS, and the original EEOC guidance. The Supreme Court articulated a new test in pregnancy discrimination cases, saying that the pregnant woman must first prove that she asked for an accommodation which was denied, and that the employer did accommodate similarly situated employees. The employer must then put forth a legitimate reason for denying the pregnant woman the accommodation. The burden this shifts back to the pregnant woman to show that the employer’s policy or practice in denying pregnant women an accommodation imposed a “significant burden” on pregnant workers and that there are no “sufficiently strong” reasons to justify that significant burden. 

Because of the decision in Young, the EEOC had to go back to the drawing board regarding its Pregnancy Discrimination guidance. The EEOC adopted the test outlined by the Supreme Court, stating that “an employer policy or practice that, although not facially discriminatory, significantly burdens pregnant employees and cannot be supported by a sufficiently strong justification” could run afoul of the PDA. The EEOC noted that an employer’s policy that accommodated a large percentage of non-pregnant employees but failed to accommodate a large percentage of pregnant employees may result in just this type of significant burden. So, even though the EEOC may not take a hardline view of light-duty programs, it seems clear that the agency will still closely scrutinize such programs to determine whether pregnant employees are being significantly burdened, while other categories of employees (e.g., those injured on the job) are routinely accommodated. 

What does this mean for you? Employers should review their policies and practices regarding pregnancy accommodations in light of Young and the revised EEOC guidance. And, don’t forget that pregnancy-related complications may be considered disabilities under the Americans with Disabilities Act, which was amended in 2008 to broaden the definition of disability. Finally, don’t forget about Kansas laws covering pregnant employees. In Kansas, employers must treat pregnancy-related disabilities the same as other temporary disabilities. And, employers must grant women leave for a “reasonable period of time” for childbirth. This is true regardless of whether the woman qualifies for leave under other leave policies or laws (such as the FMLA).