Hey, EEOC, there's this newfangled technique known as "track changes." Look into it!

Last Thursday, the Equal Employment Opportunity Commission issued its amended guidance on pregnancy discrimination and accommodation in light of the U.S. Supreme Court decision in Young v. UPS, issued in March 2015. The EEOC's original guidance was issued in July 2014, but now the new version of the EEOC Guidance is the only one that is available on line. My blog posts from last July and this past April, as well as the blog posts I could find by other lawyers, all linked to the online version of the EEOC document, which means that those older blog posts are linking to the new guidance now. (Grrr.)

The EEOC did not post a "comparison" of the old and new versions, as the U.S. Department of Labor has helpfully done with changes to the Family and Medical Leave Act regulations, and as state legislatures have done for -- forever.

Fortunately, I found a hard copy of the 2014 guidance in my paper files, and so I've been able to compare the 2014 Guidance with the new Guidance issued last week. If you click on to the next page of this post, you'll see that I've posted the actual verbatim deletions and additions made by the EEOC (not including footnotes), just in case you ever need it for reference.

Based on my reading, the EEOC hasn't really changed its position on pregnancy accommodation, but it seems to be taking a softer, somewhat-more-flexible line in light of the squishy soft and flexible guidance provided by the Supreme Court majority in Young. In 2014, the EEOC's position was that employers had to accommodate employees with pregnancy-related conditions if they accommodated employees with similar limitations resulting from disabilities or work-related injuries. The new guidance says pretty much the same thing, but in gentler language: an employer will still be found to be in violation if a refusal to accommodate places a "significant burden" on pregnant employees without a "sufficiently strong justification."

What that really means is anybody's guess.

Because most employers don't want to be "test cases," I'd suggest accommodating pregnant employees as much as possible and providing light duty for pregnant employees on roughly the same basis on which you provide it for employees with work-related injuries. The EEOC's more-flexible stance may give you some leeway if a mistake is made and you're having to defend yourself in court. But from a preventive standpoint (in other words, before any damage is done), I think accommodation is the way to go.

I would love to hear what others think about this. And, don't forget, the verbatim changes to the Guidance are below the jump.

. . . AND ALSO OF INTEREST . . . 

Tony McGrath of our Madison Office has a great summary of the U.S. Department of Labor proposed rule on overtime exemptions.

And the always-fascinating David Phippen from Metro D.C. is back with the May-June edition of the Executive Labor Summary. His discussion of the impact of King v. Burwell on labor relations is worth the price of admission in itself. (Which, by the way, is free, so get on over there.)

REFERENCE GUIDE

COMPARISON OF EEOC'S 2014 AND 2015 PREGNANCY GUIDANCE

The 2015 Guidance deletes entirely the following section from the 2014 Guidance:

Section I.A.5. Persons Similar in Their Ability or Inability to Work

Title VII requires that individuals affected by pregnancy, childbirth, or related medical conditions be treated the same for all employment-related purposes as other persons not so affected but similar in their ability or inability to work. [FN] Thus, an employer is obligated to treat a pregnant employee temporarily unable to perform the functions of her job the same as it treats other employees similarly unable to perform their jobs, whether by providing modified tasks, alternative assignments, leave, or fringe benefits. [FN]

An employer may not refuse to treat a pregnant worker the same as other employees who are similar in their ability or inability to work by relying on a policy that makes distinctions based on the source of an employer's limitations (e.g., a policy of providing light duty only to workers injured on the job). [FN] However, an employer may treat a pregnant employee the same as other employees who are similar in their ability or inability to work with respect to other prerequisites for obtaining the benefit that do not relate to the cause of an employee's limitation. For example, a pregnant worker who needs changes in her duties or schedule would be responsible for conveying the request to her supervisor and for providing reasonable documentation of her limitations if this is what the employer requires of employees who seek workplace changes for reasons other than pregnancy. Similarly, if a pregnant worker requests a change that the employer is providing as a reasonable accommodation to a co-worker with a disability, the employer may evaluate the pregnant employee's request in light of whether the change would constitute an "undue hardship," since this would amount to treating the pregnant employee the same as an employee with a disability whose accommodation request would also be subject to the defense of undue hardship. [FN]

Pregnant employees seeking to establish that they have not been treated the same as other employees similar in their ability or inability to work can establish unequal treatment through various forms of evidence. For example, there might be evidence that reasonable accommodations (including exceptions to policies) are provided under the ADA to individuals with disabilities who are similar to a pregnant worker in terms of their ability or inability to work. [FN]

The [Americans with Disabilities Act Amendments Act] expanded the definition of disability to include employees with conditions requiring work-related restrictions similar to those needed by pregnant women. For example, someone who, because of a back impairment, has a 20-pound lifting restriction that lasts for several months would be an individual with a disability under the ADA entitled to reasonable accommodation, absent undue hardship. [FN] The same individual would be an appropriate comparator for [Pregnancy Discrimination Act] purposes to a woman who has a similar restriction due to pregnancy. Similarly, pregnant employees may require other kinds of workplace adjustments similar to accommodations provided to individuals with disabilities, such as permission to take more frequent breaks and to keep a water bottle at a workstation where an employer generally prohibits this practice (an accommodation that an employer might provide to someone who takes medication to combat the effects of dry mouth caused by certain psychiatric medications), [FN] or permission to use a stool to carry out job functions generally performed while standing (an accommodation that might be provided to an employee with a back or leg impairment that limits standing). [FN]

The 2015 Guidance deletes the stricken-out sentence from Section I.B.1 (Disparate Treatment) and replaces it with the bold italicized sentence:

A violation under this provision will be established where all of the evidence, viewed as a whole, establishes that an employer has treated  pregnant worker differently than a non-pregnant worker similar in his/her ability or inability to work. Employer policies that do not facially discriminate on the basis of pregnancy may nonetheless violate the provision of the PDA where they impose significant burdens on pregnant employees that cannot be supported by a sufficiently strong justification. [FN]

At the end of this same subsection, the 2015 Guidance adds the following:

[Original text:] Evidence indicating disparate treatment based on pregnancy, childbirth, or related medical conditions includes the following:

***

• [NEW:] Evidence of an employer policy or practice that, although not facially discriminatory, significantly burdens pregnant employees and cannot be supported by a sufficiently strong justification.
• In Young v. United Parcel Serv., Inc., [FN] the Court said that evidence of an employer policy or practice of providing light duty to a large percentage of nonpregnant employees while failing to provide light duty to a large percentage of pregnant workers might establish that the policy or practice 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." [FN]

The "light duty" section in the original Guidance (Section I.C.1) has been significantly edited. Strike-throughs were in the 2014 Guidance but are now deleted; bold italicized text is newly added in 2015; regular text is the same in 2014 and 2015 versions. (Bold, non-italicized text was bold in both 2014 and 2015 versions.)

C. Equal Access to Benefits

An employer is required under Title VII to treat an employee temporarily unable to perform the functions of her job because of her pregnancy-related condition in the same manner as it treats other employees similar in their ability or inability to work, whether by providing modified tasks, alternative assignments, or fringe benefits, such as disability leave and leave without pay. [FN] In addition to leave, the term "fringe benefits" includes, for example, medical benefits and retirement benefits.

1. Light Duty

a. Disparate Treatment: Pregnancy-Related Comments as Direct Evidence of Discrimination

i. Evidence of Pregnancy-Related Animus

If there is evidence that pregnancy-related animus motivated an employer's decision to deny a pregnant employee light duty, it is not necessary for the employee to show that another employee was treated more favorably than she was.

EXAMPLE 9

Evidence of Pregnancy-Reated Animus Motivating Denial of Light Duty

An employee requests light duty because of her pregnancy. The employee's supervisor is aware that the employee is pregnant and knows that there are light duty positions available that the pregnant employee could perform. Nevertheless, the supervisor denies the request, telling the employee that having a pregnant worker in the workplace is just too much of a liability for the company. It is not necessary in this instance that the pregnant worker produce evidence of a non-pregnant worker similar in his or her ability or inability to work who was given a light duty position.

b. Disparate Treatment: Evidence of Other Workers Similar in Their Ability or Inability to Work Who Are Given Light Duty

In the absence of pregnancy-related statements evidencing animus, a pregnant worker may still establish a violation of the PDA by showing that she was denied light duty or other accommodations that were granted to other employees who are similar in their ability or inability to work. The PDA provides that "women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes, including receipt of benefits under fringe benefit programs, as other persons not so affected but similar in their ability or inability to work." [FN] Accordingly, an employer's failure to treat pregnant employees the same as non-pregnant employees similar in their ability or inability to work is a violation of the PDA.

EXAMPLE 10

Employer Does Not Provide Equal Access to Light Duty

An employer has a policy or practice of providing light duty, subject to availability, for any employee who cannot perform one or more job duties for up to 90 days due to injury, illness, or a condition that would be a disability under the [Americans with Disabilities Act]. An employee requests a light duty assignment for a 20-pound lifting restriction related to her pregnancy. The employer denies the light duty request, claiming that pregnancy itself does not constitute an injury, illness, or disability, and that the employee has not provided any evidence that the restriction is the result of a pregnancy-related impairment that constitutes a disability under the ADA. The employer has violated the PDA because the employer's policy treats pregnant employees differently from other employees similar in their ability or inability to work.

An employer does not violate the PDA when it offers benefits to pregnant workers on the same terms that it offers benefits to other workers similar in their ability or inability to work. Therefore, if an employer's light duty policy places certain types of restrictions on the availability of light duty positions, such as limits on the number of light duty positions or the duration of light duty assignments, the employer may lawfully apply those restrictions to pregnant workers, as long as it also applies the same restrictions to other workers similar in their ability or inability to work. [FN]

EXAMPLE 11

Employer Provides Equal Access to Light Duty

Rachel worked as a nursing assistant at Sunrise Valley, a long-term care facility. After Rachel became pregnant, she applied for and was denied a light duty assignment. Sunrise Valley then discharged Rachel because she could not perform all of her job duties. Rachel filed a charge claiming that she was discriminated against on the basis of pregnancy by being denied light duty while light duty was provided to other workers with similar restrictions.

The EEOC investigation finds that Sunrise Valley has five administrative positions that it staffs with employees who are unable to perform one or more of their regular job functions and that Sunrise Valley has appropriately determined that this is the maximum number of light duty positions it can make available consistent with its staffing needs and the facility's obligation to ensure proper care and safety of its residents. The evidence also shows that in the past, pregnant workers have received light duty when positions are available and non-pregnant workers have been denied light duty when all positions were filled. At the time that Rachel made her request, all of the available light duty positions were filled. Because pregnant workers have equal access to light duty positions under the same terms as others similar in their ability or inability to work, Sunrise Valley's failure to provide light duty for Rachel when no light duty positions were available does not violate the PDA. [FN]

However, an employer cannot lawfully deny or restrict light duty based on the source of a pregnant employee's limitation. Thus, for example, an employer must provide light duty for pregnant worker on the same terms that light duty is offered to employees injured on the job who are similar to the pregnant worker in their ability or inability to work.

EXAMPLE 12

Employer Does Not Apply Restrictions Equally

An employer makes six light duty positions available to workers unable to perform one or more job duties due to an on the job injury, pregnancy, or an injury, illness, or condition that would constitute a disability under the ADA. A pregnant worker applies for a light duty assignment as a result of work restrictions imposed by her pregnancy. The employer denies the request, claiming that all six positions are currently filled. The employee produces evidence that, in the past, the employer has provided light duty assignments to workers injured on the job even when all six assignments were filled. The employee has provided evidence that the policy's restrictions were not applied equally to the pregnant worker's request for a light duty position.

c. Disparate Treatment: Proof of Discrimination Through McDonnell Douglas Burden-Shifting Framework

ii. Proof of Discrimination Through McDonnell Douglas Burden-Shifting Framework

A plaintiff need not resort to the burden shifting analysis set out in McDonnell Douglas Corp. v. Green [FN] in order to establish a violation of the PDA where there is direct evidence that pregnancy-related animus motivated the denial of light duty. Absent such evidence, however, a plaintiff must produce evidence that a similarly situated worker was treated differently or more favorably than the pregnant worker to establish a prima facie case of discrimination., or evidence that a pregnant employee was denied a light duty position provided to other employees who are similar to the pregnant employee in their ability or inability to work. If a plaintiff relies on this method of proof, however, she must produce evidence that a similarly situated worker was treated differently or more favorably than the pregnant worker to establish a prima facie case of discrimination. The Commission's position is that workers placed in light duty positions because they were injured on the job and/or because they meet the definition of "disability" under the ADA are appropriate comparators for purposes of this stage of the McDonnell Douglas analysis. [FN] Thus, consistent with the statutory language, a pregnant worker with a work restrictions who challenges a denial of light duty should be able to establish a prima facie case of discrimination under McDonnell Douglas by identifying any other employee who is similar in his or her ability or inability to work and who was treated more favorably, including employees injured on the job and/or covered by the ADA.

The Commission rejects the position that the PDA does not require an employer to provide light duty for a pregnant worker if the employer has a policy or practice limiting light duty to workers injured on the job and/or to employees with disabilities under the ADA. Some courts have reached this conclusion based on the premise that employees covered by such policies are not proper comparators to the pregnant worker for the purposes of the McDonnell Douglas analysis. [FN] This analysis is flawed because it rejects the PDA's clear admonition that pregnant workers must be treated the same as non-pregnant workers similar in their ability or inability to work.

Under McDonnell Douglas, once the employee has established a prima facie case, the employer is required to articulate a legitimate, non-discriminatory reason for treating the pregnant worker differently than a non-pregnant worker similar in his or her ability or inability to work. A policy that excludes pregnant workers from benefits offered to non-pregnant workers similar in their ability or inability to work based on the cause of their limitations, such as a policy that provides light duty only for individuals injured on the job, does not constitute such a legitimate, non-discriminatory reason. Even if an employer can assert a legitimate non-discriminatory reason for the different treatment, such as an evenly applied policy based on something other than the source of an employee's limitations (e.g., a policy limiting the number of available light duty positions), the pregnant worker is then able to present evidence showing that the articulated reason is merely a pretext for discrimination. For example, the pregnant worker might show that an employer that asserts it has a cap on the number of available light duty assignments has waived that cap for workers injured on the job but never for pregnant workers.

According to the Supreme Court's decision in Young v. United Parcel Serv., Inc. [FN] a PDA plaintiff may make out a prima facie case of discrimination 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.'" [FN] As the Court noted, "[t]he burden of making this showing is not 'onerous.'" [FN] For purposes of the prima facie case, the plaintiff does not need to point to an employee that is "similar in all but the protected ways." [FN] For example, the plaintiff could satisfy her prima facie burden by identifying an employee who was similar in his or her ability or inability to work due to an impairment (e.g., an employee with a lifting restriction) and who was provided an accommodation that the pregnant employee sought.

Once the employee has established a prima facie case, the employer must articulate a legitimate, non-discriminatory reason for treating the pregnant worker differently than a non-pregnant worker similar in his or her ability or inability to work. "That reason normally cannot consist simply of a claim that it 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." [FN]

Even if an employer can assert a legitimate non discriminatory reason for the different treatment, the pregnant worker may still show that the reason is pre textual. Young explains that

[t]he plaintiff may reach a jury on this issue by providing sufficient evidence 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. [FN]

An employer's policy of accommodating a large percentage of non-pregnant employees with limitations while denying accommodations to a large percentage of pregnant employees may result in a significant burden on pregnant employees. [FN] For example, in Young the Court noted that a policy of accommodating most nonpregnant employees with lifting limitations while categorically failing to accommodate pregnant employees with lifting limitations would present a genuine issue of material fact. [FN]

The footnotes are different in the 2015 Guidance, too, but even I'm not enough of a nerd to go through all of that! Apart from the above changes and the footnotes, the 2015 Guidance is the same as the 2014 Guidance. Ciao!