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

79 Pages Posted: 11 Aug 2015

See all articles by L. Camille Hebert

L. Camille Hebert

Ohio State University (OSU) - Michael E. Moritz College of Law

Date Written: August 10, 2015


There 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. The Equal Employment Opportunity Commission has issued revised guidance addressing issues of pregnancy, including the requirements imposed by Title VII with respect to the accommodation of disabling conditions experienced by women who are pregnant or who have recently given birth. And the United States Supreme Court has recently decided a case, Young v. United Parcel Service, Inc., 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.

The disparate treatment theory, on which both the Young case and the EEOC guidance are focused, is undoubtedly an important resource for women who are affected by pregnancy and childbirth to seek accommodations similar to those provided to other employees. But neither the Young case nor the new EEOC guidance focuses on the provision of Title VII that is 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 Court and slighted by the EEOC guidance, is the prohibition on employers maintaining even pregnancy-neutral policies and practices that disproportionately disadvantage women on the basis of pregnancy and cannot be justified by business necessity. It is the disparate impact theory, rather than the disparate treatment theory, in which Title VII’s requirement to accommodate pregnancy is most likely to be found.

JEL Classification: K31

Suggested Citation

Hebert, L. Camille, Disparate Impact and Pregnancy: Title VII's Other Accommodation Requirement (August 10, 2015). Ohio State Public Law Working Paper No. 301, Available at SSRN: https://ssrn.com/abstract=2641727 or http://dx.doi.org/10.2139/ssrn.2641727

L. Camille Hebert (Contact Author)

Ohio State University (OSU) - Michael E. Moritz College of Law ( email )

55 West 12th Avenue
Columbus, OH 43210
United States

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