U.S. Supreme Court Rules on Pregnancy Accommodations
This is one of our "ones to watch for 2015" – Young v. UPS.
The legal question certified by the Supreme Court in 2014 was: Whether, and in what circumstances, the Pregnancy Discrimination Act requires an employer that provides work accommodations to non-pregnant employees with work limitations to provide work accommodations to pregnant employees who are "similar in their ability or inability to work."
The Court's answer today is "it depends."
Specifically, the Court refused to expand the Pregnancy Discrimination Act (PDA) as far as the plaintiff, Ms. Young, was advocating. Her position was that the second section of the PDA, which requires employers to treat "women affected by pregnancy . . . the same for all employment-related purposes . . . as other persons not so affected but similar in their ability or inability to work," mandates that employers who provide light duty or other accommodations to anyone else must also provide them to pregnant workers.
This line of thought had been rejected by both the trial and appellate courts in this matter, but had also been advocated by the EEOC in its July 2014 Pregnancy Guidance. (As a fun aside, the Court referred to this Guidance as "lacking the timing, consistency, and thoroughness of consideration necessary to give it power to persuade," and "taking a position on which previous EEOC guidelines were silent and which is inconsistent with positions long advocated by the Government." That is what the EEOC gets for issuing a "Pregnancy Guidance" last year after learning the Supreme Court had decided to hear this case this year!)
In rejecting Young (and the EEOC's) position, the Court kind of "split the baby," so to speak, because it also did not wholly adopt the position put forth by UPS or which had been adopted by the lower trial and appellate courts either.
Those courts had accepted UPS' reasoning that it is per se/automatically acceptable to treat pregnant employees differently than others if the employer can articulate a legitimate reason for doing so – like the fact that "the others" were "injured on the job" or were "disabled" under the ADA.
The position adopted by the Court today however is a "version" of this argument, but which takes it a step further to say that not only must the employer articulate a "legitimate" reason for treating pregnant employees differently than "others," but this reason also must be "non-discriminatory."
If an employer can articulate such a reason, the burden then falls back on the pregnant employee to try to show that the employer's legitimate, non-discriminatory reason was pretextual/should not have applied to her. This is the same legal standard which is applied to sex, race, religion, etc. cases under Title VII.
This case was in fact remanded back down to the trial court in order for that court to "reconsider it" using a "legitimate, non-discriminatory and non-pretextual reason" standard rather than the "any legitimate reason" one previously advocated (successfully) by UPS when the case was originally dismissed by the trial court back in 2013.
The facts of the case are that Ms. Young was a part-time driver for UPS. When she became pregnant, her doctor advised her that she should not lift more than 20 pounds during her pregnancy. UPS requires its drivers to be able to lift up to 70 pounds. Accordingly, UPS told Young that she could not work while under the lifting restriction. Young then filed suit in federal court, claiming that UPS acted unlawfully in refusing to accommodate her pregnancy-related lifting restriction.
Young had shown that UPS had offered light duty and other accommodations to those injured on the job, those who were "disabled" under the ADA, and those who were not permitted to drive for a period due to failing to meet DOT physical standards.
The Supreme Court remanded the case back to the trial court by saying, "[t]he [court of appeals] did not consider the combined effects of these policies, nor did it consider the strength of UPS' justifications for each when combined. That is, why, when the employer accommodated so many, could it not accommodate pregnant women as well?"
What This Case Means to YOU
The good news is you do not have to offer the same accommodations you offer to disabled employees or to employees who are injured on the job to pregnant employees.
The bad news is, short of this "easy" standard which was rejected by the Court of just "treat everyone the same," it becomes a question of fact for each employer as to what accommodations it can offer to pregnant employees.
There is no "undue burden" or "reasonableness" standard under the PDA as there is under the ADA, so employers are left with no new guidance regarding what they should be offering to pregnant employees (since the Supreme Court also indicated its disagreement with the EEOC's 2014 Guidance in this area as noted above).
The words of wisdom the Supreme Court had on this point were "the [employer's] reason normally cannot consist simply of a claim that it is more expensive or less convenient to add pregnant women to the category of those whom the employer accommodates."
The Court also stated that "a plaintiff may reach a jury on this issue 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." For instance, such a showing could be made if the employer accommodates a large percentage of non-pregnant workers while failing to accommodate a large percentage of pregnant ones.
So, we are left with John Bode's coined adage of "be nice to pregnant women" when faced with a (documented) request for light duty or other accommodations from them.
The opinions expressed in this bulletin are intended for general guidance only. They are not intended as recommendations for specific situations. As always, readers should consult a qualified attorney for specific legal guidance. Should you need assistance from a Miller & Martin attorney, please call 1-800-275-7303.
