Pregnancy and Disparate Impact

by Roger Clegg

The U.S. Equal Employment Opportunity Commission this week has issued new “Enforcement Guidance” on “Pregnancy Discrimination and Related Issues,” and it asserts that “disparate impact” causes of action may be brought in this area under federal law. I’d like to flag the fact that, once upon a time, the U.S. Department of Justice took a contrary position, as discussed in this Seventh Circuit majority opinion and dissent. The Supreme Court, to my knowledge, has not resolved this issue.

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