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Special Edition: U.S. Supreme Court Addresses Issue of Pregnancy Accommodation

Jody SteinOn March 25, 2015, the U.S. Supreme Court handed down a decision in the case of Young v. UPS. The decision leaves not a broad pronouncement on an employer’s obligation to accommodate pregnancy but rather imposes a closer look at the circumstances surrounding an employer’s refusal to accommodate.

It is important to note at the outset that the Supreme Court’s decision does not consider how the amended ADAA with its expanded definition of “disability” could impact an employer’s obligation to accommodate pregnancy. By its own admission, the Court states that the future significance of theYoung decision may be limited as a consequence. The new ADAA definition provides that “physical or mental impairment[s] that substantially limi[t]” an individual’s ability to lift, stand, or bend are ADA-covered disabilities.

To understand the current ruling, a review of the facts is essential. Peggy Young was a part-time driver for UPS. When she became pregnant, Ms. Young’s physician restricted her to lifting a maximum of 20 pounds for the first 20 weeks of her pregnancy. Thereafter, Ms. Young would be limited to 10 pounds. These weight limitations contravened UPS’s requirements that all drivers be able to lift up to 70 pounds independently and up to 150 pounds with assistance. UPS would not allow Ms. Young to continue working with her restrictions. She was forced to stay home without pay resulting in the loss of her employee medical coverage.

UPS had a written policy permitting accommodation for 1) drivers who had become disabled on the job, 2) drivers who had lost their Department of Transportation certifications, and 3) drivers who had a disability covered by the Americans with Disabilities Act (ADA). All other employees were not entitled to accommodation.

Title VII of the Civil Rights Act of 1964 prohibits discrimination based on sex. In 1978, the Pregnancy Discrimination Act (PDA) was added to enumerate protection for pregnant women. The first clause of the PDA made explicit that “sex” discrimination included discrimination based on pregnancy, childbirth, or related medical conditions.

It is the second clause of the PDA that was at issue before the U.S. Supreme Court in this case. That provision reads:

“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…”

The Court considered how this provision would apply when the employer has a policy that accommodates “many, but not all, workers with non-pregnancy-related disabilities.” UPS did not treat all non-pregnancy-related disabilities alike. Who were the intended “other persons” to be used as comparators?

Peggy Young (along with the EEOC) argued that this second clause must be interpreted to give pregnant workers with similar limitations the same accommodations given to any other subset of workers, even if other non-pregnant workers do not receive those accommodations.  UPS argued that the courts must only compare the accommodations given to pregnant women to the accommodations it gives to others within a facially neutral category. For example, in UPS’ facially neutral policy, employees with off-the-job injuries were not accommodated and that should be the category used for comparison.

The Supreme Court ultimately decided that the path lies somewhere in between. It rejected Ms. Young’s argument because it was tantamount to a grant of unconditional “most-favored-nation” status to pregnant women, a status not intended by Congress. “It does not say that the employer must treat pregnant employees the ‘same’ as ‘any other persons’ (who are similar in their ability or inability to work), nor does it otherwise specify which other persons Congress had in mind.”

UPS’ argument that the language of the PDA’s second clause does not expand the rights of pregnant women beyond defining sex discrimination to include pregnancy discrimination was also rejected by the Court. The Court discussed at great length Congress’ intent to overrule the U.S. Supreme Court’s decision in General Electric Company v. Gilbert with the PDA. In Gilbert, the company policy provided “nonoccupational sickness and accident benefits to all employees” but did not provide “disability-benefit payments for any absence due to pregnancy.” The Gilbert Court did not see the policy as a pretext for gender-based discrimination, which caused Congress to enact the second clause of the PDA and illustrate how “discrimination against pregnancy is to be remedied.”

A plaintiff alleging pregnancy discrimination must first show that she belongs to a protected class, that she asked for accommodation, and that her employer accommodated other employees. Once a plaintiff has met that burden, the employer must show that it refused to accommodate the pregnancy for reasons that were legitimate and non-discriminatory. The Court held:

“the reasons normally cannot consist simply of a claim that it is more expensive or less convenient to add pregnant women to the category of those (‘similar in their ability or inability to work’) who the employer accommodates.”

Once the employer has met the above burden, the employee may then show that the employer’s proffered reasons are a pretext for discrimination.

“We believe that the 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 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 example, Ms. Young may be able to show that UPS accommodated a large number of non-pregnant workers with lifting restrictions while always refusing to accommodate a large number of pregnant workers with those same lifting restrictions. Ms. Young may further argue that UPS’s justification for making that distinction is not strong enough and  showed a pretext for discrimination.

The case was remanded back to the Fourth Circuit Court of Appeals for review of the combined effect of UPS’ separate accommodation policies and the strength of UPS’ justification for not accommodating pregnant women to see if Ms. Young has created a genuine issue of material fact that should go before a jury.