EEOC Modifies Pregnancy Bias Guidance to Reflect the Supreme Court’s Ruling in Young v. United Parcel Service, Inc.

On March 25, 2015, the United States Supreme Court ruled in favor of Peggy Young, a UPS driver who claimed she was discriminated against on the basis of pregnancy when she was denied a workplace accommodation that was made available to other employees with similar physical restrictions. In its opinion, the Supreme Court rejected the EEOC’s guidelines, which stated that "an employer may not refuse to treat a pregnant worker the same as other employees who are similar in their ability or inability to do work by relying on a policy that makes distinctions based on the source of an employee’s limitations."

Recently, the EEOC revised its pregnancy discrimination guidelines to reflect the Court’s conclusion that employer policies that are not intended to discriminate on the basis of pregnancy may still violate the Pregnancy Discrimination Act (PDA) if the policy imposes significant burdens on pregnant employees without a sufficiently strong justification. The new guidelines, tilted "Enforcement Guidance: Pregnancy Discrimination and Related Issues" (Guidance) can be found at http://www.eeoc.gov/laws/guidance/pregnancy_guidance.cfm.

The Guidance explains that "[e]mployer policies that do not facially discriminate on the basis of pregnancy may nonetheless violate this provision of the PDA where they impose significant burdens on pregnant employees that cannot be supported by a sufficiently strong justification."

The Guidance quotes the Court’s holding that a plaintiff may 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." For purposes of the prima facie case, the plaintiff does not need to point to an employee that is "similar in all but the protected ways."

Once the employee has established a prima facie case, the employer must articulate a legitimate, non-discriminatory reason for treating the pregnant worker differently than a non-pregnant worker similar in his or her ability or inability to work.

The plaintiff may then show the reason for treating the pregnant employee differently was pretextual "by providing sufficient evidence that the employer’s policies impose a significant burden on pregnant workers, and that the employer’s 'legitimate, nondiscriminatory' reasons are not sufficiently strong to justify the burden, but rather-when considered along with the burden imposed-give rise to an inference of intentional discrimination."

Finally, the EEOC warns that "an employer’s policy of accommodating a large percentage of nonpregnant employees with limitations while denying accommodations to a large percentage of pregnant employees may result in a significant burden on pregnant employees."

The Young decision, and the new EEOC guidelines, undoubtedly increases the burden on employers regarding pregnancy discrimination claims. In short, employers may no longer rely on facially neutral policies as a safeguard against pregnancy discrimination claims if those policies place significant burdens on pregnant employees that cannot be supported by a sufficiently strong justification.