All across America this morning, pregnant employees are screaming out in muted shouts of joy and giving each other belly bumps.
Last year, I reported on the EEOC’s recent pregnancy discrimination guidance, which interpreted the Pregnancy Discrimination Act as requiring workplace accommodations for pregnant employees even if impairments suffered during pregnancy do not rise to the level of a disability under the Americans with Disabilities Act. In that post, I encouraged you to keep an eye on Young v. UPS, a case pending before the Supreme Court, which had the potential to turn this EEOC guidance on its head.
Yesterday, the Supreme Court issued a decision in the Young case, offering a mixed bag to employers and pregnant employees alike. But in the end, the Court expanded the potential for pregnant employees to secure workplace accommodations by endorsing a balancing test to determine under what circumstances a pregnant employee can prevail on a failure to provide workplace accommodations.
Oh yeah, the court also gave the EEOC a bit of a thumping, too. I explain below.
Peggy Young was unable to perform her job as a delivery driver for UPS during her pregnancy because her doctor imposed a lifting restriction. Young requested a temporary light duty assignment, but UPS denied her request. Pursuant to the collective bargaining agreement with Young’s union, UPS provided temporary modified work assignments only for drivers who: 1) were injured on the job; 2) suffered from a disability as defined by the ADA; or 3) lost their Department of Transportation certifications. As a result, Young went on an extended, unpaid leave of absence.
At issue in the case was the interpretation of the language of the Pregnancy Discrimination Act, which 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 or inability to work. . . . ” In this case, UPS treated Young like employees who suffered off-the-job injuries and were not entitled to accommodations.
Young argued that the statutory language should be interpreted literally — in other words, that an employer must provide the same accommodations to pregnant employees as it does to non-pregnant employees who are similar in their ability or inability to work. On the other hand, UPS urged that as long as an employer provided accommodations to pregnant women in the same way it provided accommodations to others in a facially neutral category (e.g., no accommodations for off-the-job injuries), the employer could not be liable for pregnancy discrimination.
The Court rejected both interpretations. It found that Young’s views – supported by the Obama administration – granted pregnant workers a “most-favored-nation” status, under which an employer would have to provide similar accommodations to all pregnant workers, regardless of the nature of their jobs, the employer’s requirements, or any other criteria, anytime the employer made an accommodation for any employee. The Court didn’t care much for UPS’ argument either, which the Court feared would permit employers to treat pregnancy less favorably than diseases or disabilities resulting in a similar inability to work.
In reaching its decision, the Court determined that the commonly used balancing test (known as the McDonnell Douglas burden shift) should be used to determine whether a pregnant employee has suffered employment discrimination as a result of her pregnancy.
First, she must clear an initial hurdle (known as a prima facie case) by showing that: 1) she belongs to the protected class (i.e., she is or was pregnant); 2) she sought an accommodation; 3) the employer did not accommodate her; and 4) the employer accommodated others similar in their ability or inability to work. If the employer justifies its refusal to accommodate by providing a legitimate, non-discriminatory reason for its refusal – which normally cannot simply be that it is more expensive or less convenient to add pregnant women to the category of employees whom the employer accommodates – then the plaintiff may proceed to trial only by demonstrating that the employer’s reason is a pretext for discrimination. She may do this by showing that an employer’s policies impose a significant burden on pregnant workers and that the justification for not accommodating pregnant employees is not sufficiently strong, giving rise to an inference of intentional discrimination.
The Court determined that Ms. Young created an issue of fact (and thus potentially requiring a trial on the merits of her case) as to whether UPS provided more favorable treatment to at least some employees whose situation cannot reasonably be distinguished to hers. However, it sent the case back to the federal appellate court (the 4th Circuit Court of Appeals) to determine whether UPS’ reasons for having treated Young less favorably than other non-pregnant employees were pretextual. So, although Young’s case may very well be dismissed yet again, the Court gave Young — and other pregnant employees — a path to victory.
Finally, as my fellow blogger, Walt Olson, points out, we can’t help but be amused by the Court’s smackdown of the EEOC’s decision to issue its Pregnancy Discrimination guidance while the case was pending in front of the high court. As Olson points out:
the majority opinion smacked down the EEOC and the U.S. Department of Justice over the EEOC’s maximally liberal guidelines on pregnancy discrimination, which the commission hurriedly came out with last summer and which DOJ, through the Solicitor General, insisted were entitled to special weight before the Court. Writing for his liberal colleagues, [Supreme Court Justice] Breyer rejected the guidelines on grounds of “timing, ‘consistency,’ and ‘thoroughness’ of ‘consideration,’” pointing out that they ran “contrary to the litigation position the Government previously took,” that they offered no coherent reading of the statute, and, pointedly, that the EEOC had put them out “only after the Court had granted certiorari in this case” – almost as if it had been trying to influence the Court.
Ouch. So, the score after 7 innings = Young: 1, UPS: 0, EEOC: 0.
Insights for Employers
The Court’s decision made clear that an accommodation policy that is technically “pregnancy blind” will generally not, in itself, be enough to protect an employer from a pregnancy-related sex discrimination claim. Additionally, as the Court noted, its holding may be of limited significance in light of the ADA Amendments Act of 2008, which were enacted after this case began and therefore did not govern the case. The EEOC has interpreted the expanded definition of disability under the ADAAA to require employers to accommodate employees whose temporary lifting restrictions originate off-the-job, and courts have applied this requirement to pregnant employees.
The decision unwittingly extends to pregnant employees a “most favored nation” status among employees who may have workplace restrictions (even though the Court specifically reasoned that the PDA rejected such a notion). Therefore, to minimize liability for either a PDA or an ADAAA claim, employers should evaluate their accommodations and light duty policies and the effects of those policies on pregnant employees. Employers also must take seriously and review thoughtfully all employee requests for pregnancy-related accommodations to minimize liability to pregnancy discrimination claims.
Hat tip: My heartfelt thanks to my colleague, Lindsey Marcus, who drafted much of this post (with the caveat that the crass “belly bump” opening comment is not hers!).