The Equal Employment Opportunity Commission has issued revised pregnancy discrimination guidance setting forth a framework for assessing how far employers must go in accommodating pregnant employees, following the Supreme Court’s ruling earlier this year in Young v. United Parcel Serv., Inc.  In that case, the Court held that, although a policy of providing light duty only to certain workers was facially neutral, it could still violate the Pregnancy Discrimination Act in some circumstances when the employer does not provide the same accommodations to pregnant workers as to other similarly situated employees.

The 2015 “Enforcement Guidance: Pregnancy Discrimination and Related Issues” contains revised sections from the 2014 Guidance, addressing disparate treatment and light duty. In particular, the 2015 Guidance recites the Young framework and states that absent direct evidence of pregnancy- related animus in the denial of light duty, “a plaintiff can make out a prima facie case of discrimination by showing  that  she belongs to a 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 2015 Guidance notes, as did the Court, that  the burden of making this showing “is not onerous.” If these elements are established, the employer must then articulate a legitimate, nondiscriminatory reason for treating the pregnant worker differently than similarly situated employees. Again, quoting from Young, the 2015 Guidance notes “…that reason normally cannot consist simply of a claim that is more expensive or less convenient to add pregnant women to the category of those ‘similar in their ability or inability to work’ whom the employer accommodates.” Once the employer sets forth a legitimate, nondiscriminatory reason, the employee must establish that the employer’s reason is a pretext for pregnancy discrimination. The 2015 Guidance incorporates one of the Court’s examples of pretext, noting that an employer who accommodated a large percentage of non-pregnant employees with lifting limitations by providing light duty, while not similarly accommodating pregnant employees with lifting restrictions, would face potential liability if it could not sufficiently justify the distinction.

Employers should keep in mind that many states have pregnancy discrimination laws providing broader protections, and that the Young case started prior to the passage of the ADA Amendments Act of 2008, which significantly expanded the definition of disability. Although pregnancy does not always amount to a disability, increasingly, state and federal agencies seek to apply the ADA’s reasonable accommodation obligations to pregnant employees.

Employers should review their policies on leave, light duty and reasonable accommodation and be prepared to justify differences regarding pregnant workers. Managers should be trained on appropriately addressing requests from pregnant workers, and decisions regarding accommodations should be carefully reviewed in light of the 2015 Guidance.