EEOC Issues Updated Pregnancy Discrimination Enforcement Guidance

EEOC.BlogPregnancy can create confusion for employers on issues ranging from workplace safety to leave policies. When an employee becomes pregnant, employers may be uncertain about how to deal with the individual under the law while ensuring the employee is able to perform her job without risk of harm to herself or others. A pregnant employee may be temporarily unable to perform certain job duties, and the employer may wonder whether and to what extent it must provide accommodations. That was at issue in the recent U.S. Supreme Court decision, Young v. UPS, in March of this year.

The Court in Young articulated a “significant burden” standard for pregnancy discrimination claims under the Pregnancy Discrimination Act (PDA). According to the PDA, employers must treat pregnant employees the same for all employment-related purposes “as other persons not so affected but similar in their ability or inability to work.” The Young court analyzed that language and what proof a pregnant employee must have in order to proceed with a claim under the PDA.

A “significant burden” is established when an employee successfully proves that the employer accommodates a large percentage of non-pregnant workers, while failing to accommodate a large percentage of pregnant workers. This proof, according to the Court, supports a claim that the employee was discriminated against on the basis of pregnancy under the PDA. “On the basis of pregnancy” includes the employee’s pregnancy, childbirth, or related medical conditions. If any of those factors form all or part of the motivation behind an employment decision, the employer may be liable.

In its updated enforcement guidance, issued exactly three months after the Young decision on June 25, 2015, EEOC eliminated prior guidance that stated pregnant employees are entitled to ADA-like accommodation. Certainly, if there is a “substantial limitation to a major life activity or bodily function,” then the ADA may apply, but normal pregnancy does not rise to the level of an ADA disability. Consequently, if the employer maintains a policy related to temporary, non-work-related conditions, illness, or injury, it must treat pregnant employees consistently with other employees who are similar in their ability or inability to work.

In light of this updated guidance, it is wise for employers to have written policies that accommodations may be available to individuals with temporary impairments, including impairments related to pregnancy. Employers should ensure that temporarily disabled employees are treated consistently based on their ability or inability to perform work and monitor when accommodations for temporary impairments are granted. According to Young, the employer must ensure that such consistent treatment does not impose a significant burden on pregnant employees in the manner described above.  As always, MSEC attorneys are available to help members navigate through these issues.