CLIENT UPDATE

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July 7, 2015

Equal Employment Opportunity Commission Issues New Guidance on Pregnancy Discrimination

On June 26, 2015, the U.S. Equal Employment Opportunity Commission (“EEOC”) issued new guidance for employers on pregnancy discrimination. The guidance was published in response to the Supreme Court’s recent decision in Young v. United Parcel Service, Inc. in which, among other things rejected the EEOC’s prior guidance which had declared that light duty policies which excluded pregnancy-related disabilities to be “facially” discriminatory. In response to the Supreme Court decision, the EEOC altered its previous guidance with respect to disparate treatment and light duty. The new guidance supersedes guidance published in 2014. Our update on the 2014 guidance is available at www.putneylaw.com/cu_080814.html.

In Young, the Supreme Court held that it was not facially unlawful for a light duty policy to exclude pregnancy-related disabilities. Rather, the Court held that, while not facially discriminatory, a policy which significantly burdens pregnant employees and is not supported by a sufficiently strong employer justification, may give rise to an inference of intentional discrimination. In Young, the Court held that evidence that an employer provided light duty assignments to a large percentage of non-pregnant employees but failed to provide light duty assignments to pregnant workers, may establish that the policy significantly burdens pregnant employees.  Unanswered by the Supreme Court is whether a policy which grants light duty assignments in narrower circumstances (such as for cases governed by workers’ compensation), but denies light duty in all other situations (including pregnancy), would be found to be discriminatory.

In the new guidance, the EEOC makes clear a light duty policy may have an unlawful disparate impact on pregnant workers if that policy is not job related and consistent with business necessity. The EEOC also stated that disparate treatment against pregnant workers will be found when there is evidence of an employer policy or practice that, although not facially discriminatory, significantly burdens pregnant employees and cannot be supported by a sufficiently strong employer justification.

The EEOC issued a new and updated question and answer document (http://www.eeoc.gov/laws/guidance/pregnancy_qa.cfm) on pregnancy discrimination issues and a new business fact sheet (http://www.eeoc.gov/eeoc/publications/pregnancy_factsheet.cfm).

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If you have any questions regarding the EEOC’s pregnancy discrimination guidance or related issues, please do not hesitate to contact us.