Farrell: Legal changes affect pregnant employees

This past year, changes have happened with the discrimination of pregnant employees in the workforce.

On June 25, the Equal Employment Opportunity Commission released an updated version of its Pregnancy Discrimination Guidance. The updates reflect the recent U.S. Supreme Court holding in Young v. UPS. The Supreme Court concluded when an employer refuses to accommodate pregnant women, but provides accommodations for other employees, the pregnant employee may be able to prove unlawful discrimination.

Employer policies, while not intended to discriminate against pregnant employees on its face, still may violate the Pregnancy Discrimination Act (PDA) under certain circumstances, the court found.

To show a violation of the PDA, employees need to provide sufficient evidence the employer’s policies impose a significant burden on pregnant workers and the employer’s “legitimate, nondiscriminatory” reasons are not so sufficiently strong to justify the burden on the employer.

Such circumstances then cause an inference of intentional discrimination by the employers.

Due to the holding in Young, the EEOC was forced to change two sections to its Guidance. For the first change, the EEOC added new language to the Guidance’s “Disparate Treatment” section.

Specifically, the EEOC added a summary of Young to illustrate how a facially neutral discrimination still can be seen as the disparate treatment of pregnant employees.

In it, the Guidance explained employers must have a sufficiently strong justification for their actions, causing the burden on pregnant employees, or else there will be an inference of intentional discrimination.

As for the second change, the EEOC added language addressing the plaintiff’s burden. In it, the Guidance explained a plaintiff may make out a discrimination case by showing she belongs to the protected class, sought accommodation but the employer did not accommodate her. A plaintiff also needs to show how the employer accommodated others similarly in their ability to work.

Additionally, it is not difficult for the plaintiff to show her burden. In making her case, the plaintiff does not need to point to an employee that is similar in all but the protected ways.

As an example, the Guidance states the plaintiff could satisfy her burden by identifying an employee who was similar in his or her ability to work due to an impairment, such as an employee with a lifting restriction, and who was provided an accommodation the pregnant employee sought.

While these issues only pertain to pregnancy discrimination, various other changes also have been made, and continue to occur, affecting the employer-employee relationship.

As such, employers periodically should conduct compliance audits to make sure their policies are up to date with the current law.

• Ryan Farrell is a certified public accountant with Zukowski, Rogers, Flood & McArdle in Crystal Lake. Reach him at 815-459-2050.