EEOC Publishes Updated Pregnancy Discrimination Guidance

In the wake of the U.S. Supreme Court’s ruling in in Young v. United Parcel Service, Inc., the Equal Employment Opportunity Commission (EEOC) has published updated pregnancy discrimination guidance.

The latest Enforcement Guidance supersedes the Enforcement Guidance on Pregnancy Discrimination and Related Issues issued by the agency on July 14, 2014.

In March, the Supreme Court addressed what types of accommodations employers must make for pregnant workers under the Pregnancy Discrimination Act (PDA), which provides that “women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes…as other persons not so affected but similar in their ability or inability to work.” The majority ultimately rejected all of the legal standards proposed by the parties, including the EEOC’s proposal.

As previously discussed on this blog, the EEOC’s prior pregnancy discrimination guidance, which was published in 2014, stated that an employer may not treat pregnant workers differently from employees who are similar in their ability or inability to work based on the cause of their limitations. According to the Supreme Court, however, it is not that cut and dry.

With regard to proving a disparate treatment claim under the PDA, the Court held that a plaintiff may make out a prima facie case of discrimination by showing “that she belongs to the 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.’”

Behind the ruling

Adopting the additional burden-shifting framework set forth in McDonnell Douglas Corp. v. Green, the justices held that the burden then shifts to the employer to 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. “That reason normally cannot consist simply of a claim that it 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,” the Court clarified.

Assuming that the employer provides a legitimate non-discriminatory reason for the disparate treatment, the plaintiff may still show that the reason is pretextual. As further explained by the Court, “The plaintiff may reach a jury on this issue 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.”

In its latest guidance, the EEOC outlines the proof required to sustain a claim under the PDA in the wake of the Young decision. It specifically clarifies that “[a] plaintiff need not resort to the burden shifting analysis set out in McDonnell Douglas Corp. v. Green in order to establish an intentional violation of the PDA where there is direct evidence that pregnancy-related animus motivated the denial of light duty.” However, the EEOC guidance now makes it clear that absent such evidence, a plaintiff must “produce evidence that a similarly situated worker was treated differently or more favorably than the pregnant worker to establish a prima facie case of discrimination.”