The Pregnancy Discrimination Act, 42 U.S.C. § 2000e(k), dictates that “women affected by pregnancy, childbirth, or related medical conditions shall be treated the same” as other employees who are “similar in their ability or inability to work.” The Act has two sections. The first section provides that employers can’t discriminate on the basis of pregnancy because it would be sex discrimination and the second section provides that “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 to work.” The second section of the law has been the source of repeated questions for employers and employees alike.
In Young v. United Parcel Service, Inc., a newly released 6-3 opinion, the U.S. Supreme Court has provided a test detailing when the Pregnancy Discrimination Act requires an employer that provides work accommodations to non-pregnant employees to extend such accommodations to pregnant employees who are similar in their ability or inability to work.
Peggy Young was a driver with UPS. When she became pregnant, her obstetrician advised her not to lift more than 20 pounds. Generally, UPS drivers were expected to carry packages of up to 70 pounds, but the company offered accommodations to those injured on the job; those with conditions recognized as disabilities under the Americans with Disabilities Act; and those who lost their DOT certification. When Young requested an accommodation from her employer, UPS advised that she could not work as long as she had a lifting restriction. Young requested a light duty assignment, but her request was denied because pregnancy did not fit into one of the three categories for which accommodations were permitted under the UPS policy. Young was placed on unpaid leave and subsequently sued her employer for failing to provide an accommodation. It was Young’s position that female workers should get the same accommodation when they cannot perform their normal jobs as any other worker gets for any other condition that similarly impairs their ability to work. Alternatively, UPS argued that Young couldn’t prove the company’s decision to deny her an accommodation was based on her pregnancy. UPS claimed it had a “pregnancy-neutral” policy and that Young wasn’t treated differently than any similarly situated co-worker. In addition, UPS argued it had no duty to accommodate Young under the ADA because Young’s pregnancy didn’t meet the definition of a disability.
The District Court found in favor of UPS and rejected Young’s argument, holding that those who had suffered on the job injuries, those who lost their commercial driver’s certification and those who sought ADA related accommodations were not similarly situated comparators. The Fourth Circuit Court of Appeals affirmed this decision.
Upon review by the U.S. Supreme Court, the Court raised questions as to whether Young’s interpretation of the Pregnancy Discrimination Act would create an entitlement to special treatment not available to other employees who sought accommodations but who likewise fell outside the neutrally defined eligibility categories set forth in the UPS policy. The Supreme Court found that Young’s approach would eliminate the need for an employee to prove intentional bias by her employer, and therefore such an approach would extend beyond the protections desired by Congress. Additionally, the Supreme Court found that the argument put forth by UPS that the Pregnancy Discrimination Act simply defines sex discrimination to include pregnancy discrimination, was too narrow an interpretation. Not finding either parties’ position persuasive, and rejecting the EEOC’s 2014 guidelines as lacking the “timing,” “consistency,” and “thoroughness of consideration” necessary to “give it power to persuade,” the Supreme Court crafted a new test.
In its opinion, the U.S. Supreme Court ruled that the Pregnancy Discrimination Act requires an individual claiming she was subjected to pregnancy discrimination to prove that she is in the protected class (one who can become pregnant); that she requested a workplace accommodation; that the employer refused to accommodate her; and that the employer provided accommodations for other individuals who were equally temporarily unable to do their work. Once the individual has done so, her employer has the opportunity to show that its workplace policy was not biased against pregnant workers, but that a legitimate, non-discriminatory reason for denying the accommodation existed. Generally, the fact that it is more expensive or less convenient to add pregnant women to the category of individuals who will be accommodated, is not a sufficient reason.
After an employer has identified a legitimate, non-discriminatory reason for its denial of accommodation to a pregnant employee, the employee can respond by showing the proffered reason is pretextual. The employee may create a question of fact by providing evidence that the employer’s policies impose a significant burden on pregnant workers, and that the employer’s legitimate, non-discriminatory reasons are not sufficiently strong enough to justify the burden placed on the pregnant employee(s), thereby giving rise to an inference of intentional discrimination.
In light of the U.S. Supreme Court’s ruling, employers should pay close attention to pregnancy accommodation requests and take such requests seriously. Pregnant workers have the right to request light duty and employers should consider temporary accommodations for pregnant employees when such accommodations are provided to other workers with similar restrictions. While accommodations are not required in all situations, in determining whether an employer has violated the Pregnancy Discrimination Act courts may consider evidence that an employer accommodates a large percentage of non-pregnant workers while failing to accommodate a large percentage of pregnant workers. Employers should review their existing pregnancy policies to be sure they are in compliance with the Supreme Court’s recent ruling, and ensure supervisors are trained how to recognize and respond to pregnancy accommodation requests.