As we noted a few months ago, the Supreme Court’s decision in Young v. UPS clarified employers’ duties towards their pregnant employees. Specifically, the Court held that a facially neutral policy of providing light duty work only for certain employees could potentially violate the Pregnancy Discrimination Act, if the employer does not provide this accommodation to similarly situated pregnant workers.
The EEOC has now issued a revised “Enforcement Guidance: Pregnancy Discrimination and Related Issues,” which, consistent with Young, states that “a plaintiff can make out a prima facie case of discrimination by showing that she belongs to a protected class, that she sought accommodation, that the employer did not accommodate her, and that the employer did accommodate others ‘similar in their ability or inability to work,’” a burden that “is not onerous.” If (more likely when) the plaintiff meets this burden, the employer must then articulate a legitimate, nondiscriminatory reason for treating the pregnant worker differently than similarly situated employees. Quoting from Young, the revised Guidance notes “that reason normally cannot consist simply of a claim that is more expensive or less convenient to add pregnant women to the category of those ‘similar in their ability or inability to work’ whom the employer accommodates.” Once the employer sets forth a legitimate, nondiscriminatory reason, the burden shifts back to the employee to establish that employer’s reason is a pretext for pregnancy discrimination.
Young and this Guidance could significantly impact employers’ duties to accommodate, as well as their leave and light duty policies.