Quirky Question #266: What’s up with Pregnancy Discrimination?

Question: Over the summer, we heard a lot about new guidance on pregnancy discrimination. What do we need to know to ensure we are complying with local, state, and federal laws on pregnancy discrimination?

Answer: By Rebecca Bernhard, Michael Droke, Jessie Mischke, and Melissa Raphan

Rebecca Bernhard

Rebecca Bernhard

Mike Droke

Mike Droke

Jessie Mischke

Jessie Mischke

Melissa Raphan

Melissa Raphan

Pregnancy discrimination was reignited as a hot topic after the Supreme Court’s 2015 decision in Young v. UPS, and the guidance has continued to evolve. As anticipated, the U.S. Equal Employment Opportunity Commission (“EEOC”) released an updated guidance, Q&A resource, and fact sheet for small businesses late last month. Legislatures at both the federal and state level have similarly shown interest in increasing protections for pregnant workers.

The EEOC: In late June, the EEOC issued three publications concerning pregnancy discrimination:

  1. Enforcement Guidance: Pregnancy Discrimination and Related Issues,”
  2. Questions and Answers about the EEOC’s Enforcement Guidance on Pregnancy Discrimination and Related Issues,”and
  3. Fact Sheet for Small Businesses: Pregnancy Discrimination“.

The new enforcement guidance “supersedes” the EEOC’s July 2014 guidance on pregnancy discrimination and in particular, amends the agency’s earlier interpretation of disparate treatment and light duty work due to Young v. UPS. Citing to Young, the EEOC provides that among other things, “[e]vidence of an employer policy or practice that, although not facially discriminatory, significantly burdens pregnant employees and cannot be supported by a sufficiently strong justification[,]” indicates disparate treatment. o-PREGNANT-WORKER-DISCRIMINATION-facebook

With regard to light duty work and disparate treatment claims, the guidance relies heavily on Young to summarize the McDonnell Douglas framework and highlights that an employee can establish pretext by providing evidence that “[a]n employer[] [has a] policy of accommodating a large percentage of nonpregnant employees with limitations while denying accommodations to a large percentage of pregnant employees[.]”

The guidance also outlines employer obligations under the Pregnancy Discrimination Act (which amended Title VII), the Americans with Disabilities Act, and other laws; provides examples of what it considers to be lawful and unlawful conduct; and outlines employer best practices.

Congress: Congress also took quick action following Young. In June, a group of legislators introduced the Pregnant Workers Fairness Act. The Act seeks to deliver greater clarity regarding the duty of employers to provide reasonable accommodations and strengthen protections against discrimination.

States: States have likewise adopted increased protections in this context. For example, in 2014, Minnesota adopted the Women’s Economic Security Act, which includes, among other things, provisions related to pregnancy accommodations. Florida, meanwhile, amended the Florida Civil Rights Act to incorporate specific references to pregnancy, which went into effect on July 1, 2015.

Next Steps for Employers: Given the Supreme Court’s decision in Young v. UPS and the ongoing updates in this area, employers may wish to take certain steps to stay abreast of changes:

  • Review policies related to reasonable accommodations, leave and time off, break times, discrimination, harassment, and retaliation.
  • Review state and local laws. As described above, such laws may impose heightened requirements and restrictions on employers (as is the case in Minnesota).
  • Review historical accommodation requests and decision-making to identify any discrepancies in decision-making across different classes of employees.
  • Provide training to supervisors, managers, and HR professionals on pregnancy discrimination and how to handle and process accommodation requests.
Rebecca Bernhard

About Rebecca Bernhard

Rebecca's experience spans traditional labor and employment, immigration, and federal contract compliance and audits. She supports clients with their corporate transactions, advising on all aspects of labor and employment diligence,......

Michael Droke

About Michael Droke

Mike started his career as a client, not a lawyer. He represented the same company where he worked in management, thus “walking both sides of the street.” As a lawyer,......

Melissa Raphan

About Melissa Raphan

Melissa is a Partner in Dorsey’s Labor and Employment group. She represents employers in employment litigation matters including class actions, collective actions, multi-plaintiff actions and single plaintiff cases nationwide and......