The reach of the Pregnancy Discrimination Act has expanded in recent years, most notably when the Equal Employment Opportunity Commission (EEOC) issued its regulatory guidance on July 14, 2014. In subsequent years, the courts have added additional interpretation and clarification. And many employers have been caught off guard.

Background

The origin of the prohibition on pregnancy discrimination lies in Title VII of the Civil Rights Act of 1964, which states that it is unlawful for an employer “to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s…sex…” (42 U.S.C. § 2000e-2(a)(1)).

The Pregnancy Discrimination Act (PDA) was passed in 1978 to expand the definition of sex discrimination stating that “the terms ‘because of sex’ or ‘on the basis of sex’ include, but are not limited to, because of or on the basis of pregnancy, childbirth, or related medical conditions; and women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes…as other persons not so affected but similar in their ability or inability to work.” (42 U.S.C. § 2000e(k)).

The EEOC handles about 3,500 to 4,000 charges per year. Approximately 23% are “merit resolutions,” and over $14.8 million was recovered in FY 2015.

The PDA covers discrimination based on:
 

  • Current pregnancy
  • Childbirth
  • Intention to become pregnant
  • Fertility or childbearing capacity
  • Past pregnancies
  • Related medical conditions (including lactation and abortion)

Pregnancy discrimination can be alleged as a result of decisions and actions such as:
 

  • Hiring
  • Promotion
  • Discharge
  • Job assignments
  • Harassment
  • Forced leave
  • Failure to provide leave
  • Failure to accommodate pregnancy-related limitations (e.g., light duty or alternative assignments)

Pregnancy Discrimination Case Law

The EEOC has been successful in proving violations of the PDA in recent years. In the first two months of this year, the EEOC was successful in settling three significant cases. In January, an award of $35,000 was obtained for an expectant employee who was fired by a moving company based on the unfounded belief that the job was unsafe for her. (EEOC v. Dehavens (M.D.NC)). In February, the EEOC obtained a consent decree amounting to $22,500 after a staffing company refused pregnant women warehouse assignments due to safety concerns. (EEOC v. Quality Solutions (N.D.GA)). Also in February, the EEOC obtained an $85,000 settlement from Pharmacy Solutions, who fired two women after enduring negative comments from managers about their pregnancies. (EEOC v. Pharmacy Solutions (N.D.TX)).

The most significant recent case, however, is Young v. UPS, filed by Peggy Young, who picked up air shipments as a part-time UPS truck driver. In 2006, she took a leave of absence for in vitro fertilization. She subsequently became pregnant and was advised not to lift anything over 20 pounds. She requested either light duty as an air shipment truck driver, or to be moved to a regular UPS driver position (in which there are rarely heavy packages).

UPS denied request, because light duty was only offered to workers with on-the-job injuries, ailments covered by ADA, and those who lost Department of Transportation (DOT) certification due to physical ailments (i.e. sleep apnea). Thus, they argued, they were not discriminating against her on basis of pregnancy. Young took the only option available – unpaid leave – which resulted in the eventual loss of her medical coverage. She returned to work two months after birth, and filed suit in October 2008.

The District Court issued summary judgment in favor of UPS because its policy was “gender-neutral.” The 4th Circuit Court of Appeals affirmed the lower court because UPS had established a “pregnancy-blind” policy. The Supreme Court thought otherwise, and set criteria for evaluating whether a facially neutral policy could be unlawful if it 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.”
 

  1. First, the plaintiff must establish a prima facie case:
    1. Belong to a protected class (pregnant)
    2. Seek accommodation
    3. Denied accommodation
    4. Employer accommodated others similar in their ability or inability to work
  2. Employer must then provide a legitimate non-discriminatory reason for denying the accommodation
  3. Employee must then show pretext

Following the Supreme Court’s decision in the UPS case, the EEOC issued revisions to the EEOC guidance in June 2015, stating that women may be able to prove unlawful pregnancy discrimination if the employer accommodated some workers but refused to accommodate pregnant women. Employer policies that are not intended to discriminate on the basis of pregnancy may still violate the Pregnancy Discrimination Act (PDA) if the policy imposes significant burdens on pregnant employees without a sufficiently strong justification.

Conclusion

In light of the recent changes to the EEOC guidance and the development of case law, employers should review not only the policies regarding accommodations, but also the impact that facially neutral policies could have on pregnant employees. Employers should also ensure that their non-discrimination and harassment policies conform with the EEOC guidance, and that employees are provided with awareness training on all aspects of non-discrimination and harassment.

To learn more about OFCCP compliance and strategic audit defense and best practices in equal employment opportunity, contact Marilynn Schuyler at 703-675-8782 or Schuyler@SchuylerAAP.com.

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Copyright © 2016 Schuyler Affirmative Action Practice.