CLIENT UPDATE

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April 9, 2015

Supreme Court Weighs In on Pregnancy Discrimination

As we previously advised, the Equal Employment Opportunity Commission (“EEOC”) issued new Enforcement Guidance on Pregnancy Discrimination (“Guidance”) in July, 2014.  (Our August 8, 2014 Client Alert is available at http://www.putneylaw.com/cu_080814.html.)  At the time the Guidance was issued, the United States Supreme Court had just agreed to review Young v. United Parcel Service, Inc., 707 F.3d 437 (4th Cir. 2013), where the Fourth Circuit held that the Pregnancy Discrimination Act (“PDA”) did not require an employer to accommodate a pregnant employee by offering her the type of light duty assignments it provided to disabled employees and those with work-related injuries. 

In its Enforcement Guidance, the EEOC took the opposite position.  The EEOC stated that if employers make light duty assignments available to employees with disabilities under the Americans with Disabilities Act (“ADA”), then employers must do the same for pregnant women in similar circumstances  The Guidance also stated that employers must treat pregnant workers who are temporarily unable to perform functions of their jobs in the same manner as they treat other employees unable to perform their jobs due to disabilities, even if the pregnancy-related impairment does not rise to the level of a “disability” as defined by the ADA.

On March 25, 2015, the Supreme Court overturned the Fourth Circuit’s decision, holding that employers may be required to give pregnant employees light-duty positions if the employers would do so for other employees with similar limitations on their ability to work, but the Court also refused to defer to the standard set forth EEOC Enforcement Guidance.  All nine justices rejected Young’s argument that if an employer treats any other group of individuals in a favorable way with respect to leave (such as those who suffer on-the-job injuries), it must also do so for pregnant workers. The Court also rejected the view that no policy could violate the PDA if it was pregnancy-neutral—that is, if it did not single out pregnancy as the only condition that did not merit some particular accommodation.

Instead, the majority elected to apply the familiar McDonnell Douglas burden shifting test to claims of pregnancy discrimination.  The majority explained that an individual pregnant worker who seeks to show disparate treatment can establish a prima facie case 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.”  The employer may then offer a legitimate, nondiscriminatory reason for the refusal to accommodate, but “normally” may not defend based on cost or employer convenience.  If the employer asserts such a nondiscriminatory reason, the plaintiff can then prevail by showing “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.”  

According to the majority, pretext is shown by evidence that the employer accommodates a large percentage of non-pregnant workers while failing to accommodate a large percentage of pregnant workers.  For example, Young could prevail by showing that UPS does not have a sufficiently strong reason for refusing to accommodate pregnant employees with lifting restrictions while accommodating non-pregnant employees with lifting restrictions, “to the point that a jury could find that its reasons for failing to accommodate pregnant employees give rise to an inference of intentional discrimination.”  Accordingly, if an employer provides light duty assignments to employees injured on the job, the employer will face an uphill battle in establishing that the denial of light duty assignments to pregnant employees is not discriminatory.  However, while the test may appear straightforward, it remains to be seen how the lower courts will evaluate evidence supporting the employer’s burden of legitimacy as opposed to the employee’s showing of pretext.

In its decision, the Supreme Court also stated its disapproval of the EEOC’s recent Guidance.  The majority rejected the government’s argument that the Court should defer to the EEOC’s expansive interpretation of Title VII issued by the EEOC in July, 2014, holding that the EEOC's interpretations of the statute have lacked the “consistency” and “thoroughness [of] consideration” required for deference.

Take Away for Employers

Employers should carefully consider the practical effect of employment policies on pregnant employees and should bear in mind that many questions remain unanswered in the wake of the Supreme Court’s decision in Young.   For example: (1) whether an employer that declines to grant light duty assignments as an accommodation under the ADA (on the theory that the disabled employee must be able to perform the essential functions of the job) may lawfully apply that rule to pregnant employees when that employer does allow for temporary light duty assignments pending a return to full duties for employees who were injured on the job; (2) what constitutes a legitimate, non-discriminatory reason for denying the accommodation; and (3)  how many comparators are necessary to constitute a “large percentage of non-pregnant workers?”  Certainly, employers must do more than merely describing their policies in pregnancy-neutral terms. 

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As always, we are available to assist you with pregnancy accommodation and all other reasonable accommodation issues.