On June 25, 2015, the EEOC issued a revised Enforcement Guidance on Pregnancy Discrimination and Related Issues. This document supersedes the Enforcement Guidance dated July 14, 2014.
The EEOC left much of the prior guidance intact, but modified portions of it (relating to disparate treatment and light duty) in response to the Supreme Court’s decision in Young v. United Parcel Serv., Inc., 135 S.Ct. 1338 (2015).
For example, the EEOC notes that in Young the Supreme Court
said that evidence of an employer policy or practice of providing light duty to a large percentage of nonpregnant employees while failing to provide light duty to a large percentage of pregnant workers might establish that the policy or practice significantly burdens pregnant employees. If the employer’s reasons for its actions are not sufficiently strong to justify the burden, that will “give rise to an inference of intentional discrimination.
In connection with the issue of “light duty”, the EEOC cites Young for the proposition that where the plaintiff makes out a prima facie case of discrimination which the employer counters with legitimate non-discriminatory reasons) for the different treatment, the “pregnant worker may still show that the reason is pretextual” and
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.
Under Young, for example, “a policy of accommodating most nonpregnant employees with lifting limitations while categorically failing to accommodate pregnant employees with lifting limitations would present a genuine issue of material fact.”