Disparate Impact and Pregnancy: Title VII's Other Accommodation Requirement

I. INTRODUCTIONThere has been a good deal of attention focused recently on questions concerning how employers are allowed to treat pregnant women in the workplace under Title VII of the Civil Rights Act of 1964.1 The Equal Employment Opportunity Commission (EEOC), the agency charged with the enforcement of Title VII, has recently issued revised guidance addressing issues of pregnancy, including the requirements imposed by Title VII with respect to the accommodation of pregnant or recently pregnant women experiencing disabling conditions.2 Additionally, the United States Supreme Court recently decided a case, Young v. United Parcel Service, Inc.,3 which addresses the circumstances under which an employer will be found to have violated Title VII's prohibition against intentional discrimination for refusing to provide the same accommodation to women affected by pregnancy as that employer provides to a number of other categories of employees, including those injured on the job, employees who have disabilities under the Americans With Disabilities Act, or employees who have otherwise lost their ability to perform at least some of the functions of their employment.The disparate treatment theory, on which both the Young case and the EEOC guidance are focused, is undoubtedly an important resource for women affected by pregnancy and childbirth to seek accommodations similar to those provided to other employees. However, neither the Young case nor the new EEOC guidance focuses on the provision of Title VII most likely to provide a mandate for employers to provide accommodation to women affected by pregnancy who experience temporary inability to perform part or all of their job functions. That provision, not raised at all in the decision before the Supreme Court4 and slighted by the EEOC guidance, is the prohibition on employers maintaining even pregnancy-neutral policies and practices that disproportionately disadvantage women affected by pregnancy and cannot be justified by business necessity. It is the disparate impact theory, rather than the disparate treatment theory,5 in which Title VII's requirement to accommodate pregnancy is most likely to be found.In a number of recent cases, both under Title VII and other statutes, the Supreme Court has reaffirmed the importance of the disparate impact theory to the anti-discrimination framework. Similarly, Congress, in the Civil Rights Act of 1991, made clear its commitment to the disparate impact theory as an important component of Title VII's prohibition against discrimination, including discrimination on the basis of sex. Although the disparate treatment theory is an important tool for challenging employer decisions that impose disadvantages on women affected by pregnancy and childbirth, the disparate impact theory may provide assistance to women challenging employer practices that impose similar disadvantages but may not be unlawful as a matter of disparate treatment.This article analyzes the Supreme Court's decisions on pregnancy discrimination, including the Court's most recent decision in Young v. United Parcel Service, Inc., as well as the EEOC's recent and prior statements on pregnancy discrimination and accommodations for pregnant women.6 In doing so, the article first explains the limitations that the disparate treatment theory poses for women seeking accommodations for pregnancy. Next, the article measures the Court's decisions and the EEOC guidance against the language and legislative history of the Pregnancy Discrimination Act and explains how that language and legislative history is consistent with the use of the disparate impact theory to challenge employers' failures to accommodate pregnancy.7 The article then turns to an analysis of whether and how pregnancy discrimination claims are cognizable under the disparate impact theory as articulated by Congress and the courts.8 The article then concludes with an examination of how the disparate impact theory can mandate that employers provide accommodations to women affected by pregnancy, whether or not they provide those accommodations to other employees who are temporarily unable to perform their job duties. …