EEOC-Initiated Litigation - 2022 Edition

28 | EEOC-Initiated Litigation: 2022 Edition © 2022 Seyfarth Shaw LLP exposure. 185 The court held that Young allows an employee to prove pretext “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. ” 186 Although the EEOC had shown that a significant number of workers injured on the job had been allowed access to the light duty program while no pregnant employees had been able to use that program, it had not shown whether and to what extent other injured employees – who were not injured on the job – were allowed to use that program . 187 Moreover, pregnant employees and employees who were disabled (but not injured on the job) were apparently equally able to access the employer’s ADA accommodation policies. According to the court, therefore, “there [was] insufficient evidence from which a reasonable jury could determine that defendant's ADA policy treated pregnant employees less favorably than non-pregnant employees with disabilities or non-pregnant employees who had temporary medical restrictions from injuries sustained off the job.” 188 The EEOC has enjoyed more success with pregnancy discrimination claims where there is direct evidence of intentional discrimination. In EEOC v. Nice Systems, Inc. , 189 t the EEOC alleged that the employer had discriminated against the charging party on the basis of pregnancy through four actions: (1) transferring certain existing sales accounts to a newly hired employee; (2) refusing to assign a new sales lead in [charging party’s] territory to her; (3) invoking the “windfall” provision of [charging party’s] employment contract to cap the amount of commission she could receive on an audit/ settlement; and (4) upon her return from maternity leave, reassigning her Canada territory to a male colleague. 190 The EEOC presented direct evidence of intentional discrimination in the form of statements made by the charging party’s supervisor referencing her “condition” and “type of situation,” and questioning whether she would have the bandwidth to work on a new work opportunity “with everything else that is going on.” 191 The court found that these statements “constitute[] direct evidence of [supervisor’s] intention to base a disadvantageous decision regarding [charging party’s] employment upon an impermissible factor. Moreover, I find that there exist genuine issues of fact regarding whether [supervisor] would have initially refused to assign [charging party] the GM Lead had he not been taking her pregnancy into consideration. ” 192 The court also found against the employer on the EEOC’s retaliation claims, but found that its conduct did not rise to a level of severity and pervasiveness necessary to sustain a constructive discharge claim. 193 2. Continuing Developments In Sexual Orientation and Transgender Discrimination After Bostock Few issues have garnered as much of the EEOC’s attention over the past few years as its campaign to have LGBTQ discrimination recognized as a prohibited form of discrimination under Title VII . 194 That issue was finally settled in 2020 by the U.S. Supreme Court in the landmark decision of R.G. and R.H. Funeral Home v. EEOC/Bostock v. Clayton County. On June 15, 2020, the Supreme Court issued its opinion, ruling 185 Id. at *9. 186 Id. at *10 (quoting Young , 135 S. Ct. at 1354). 187 Id. 188 Id. at *11. 189 EEOC v. Nice Systems, Inc. , No. 20-CV-81021, 2021 WL 3707959 (S.D. Fla. Aug. 5, 2021). 190 Id . at *1. The Court first explained the legal basis of a pregnancy discrimination claim under the Pregnancy Discrimination Act: “The Pregnancy Discrimination Act of 1978 amended Title VII to define the terms ‘because of sex’ or ‘on the basis of sex' to include ‘because of or on the basis of pregnancy, childbirth, or related medical conditions.. . . ’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. . . .’” Id . at *3 (quoting 42 U.S.C. § 2000e(k)). 191 Id . at *4. 192 Id . 193 Id . at *6-7. 194 The EEOC’s Strategic Enforcement Plan explicitly identifies “[p]rotecting lesbians, gay men, bisexuals and transgender (LGBT) people from discrimination based on sex” as one of its key emerging and developing issues. Id.

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