Introduction

On March 25 2015 the Supreme Court overturned the Fourth Circuit's decision in Young v United Parcel Service, Inc (No 12-1226) and remanded the case to the Fourth Circuit for further consideration. As a result of the court's decision, pregnant women denied workplace accommodations that are granted to other categories of employee are more likely to succeed in legal claims against their employers.

Facts

Peggy Young, a delivery driver for United Parcel Service, Inc (UPS), was advised by her doctors not to lift more than 20 pounds (lbs) during her pregnancy. UPS policy required employees to be able to lift up to 70lbs. Due to Young's inability to fulfill this work requirement, as well as the fact that she had used all of her available family and medical leave, UPS forced Young to take an extended, unpaid leave of absence. During this time she lost her medical coverage. She gave birth in April 2007 and resumed working at UPS thereafter.

Young sued UPS, claiming that she had been the victim of discrimination based on gender and disability under the Americans with Disabilities Act and the Pregnancy Discrimination Act. Young was treated like other employees who were on leave because of a non-work-related illness or injury. However, she claimed she was discriminated against based on her pregnancy because light duty was made available to employees who were injured on the job, had disabilities or lost their Department of Transportation driving certification, including those charged with drunk driving.

UPS moved for summary judgment, arguing that Young could not show that UPS's decision was based on her pregnancy or that she was treated differently than a similarly situated co-worker. UPS also argued that it had no obligation to offer Young accommodations under the Americans with Disabilities Act because Young's pregnancy did not constitute a disability.

The crux of the issue was defining the correct comparator: Are pregnant women entitled to the same accommodations as employees covered by the Americans with Disabilities Act? Or can they be offered lesser accommodations provided to individuals who have a non-disabling, non-work-related illness or injury?

Decision

The Supreme Court held that an individual pregnant worker who seeks to show disparate treatment through indirect evidence may do so through the application of the McDonnell Douglas burden-shifting framework. However, the court rejected the arguments made by both parties regarding the application of the second clause of the Pregnancy Discrimination Act, which provides:

"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 by similar in their ability or inability to work."

Young claimed that as long as:

"an employer accommodates only a subset of workers with disabling conditions... pregnant workers who are similar in the ability to work [must] receive the same treatment even if still other nonpregnant workers do not receive accommodations."

The court rejected her position, explaining that Congress did not intend to grant pregnant workers an unconditional "most-favored-nation" status, so that employers who provide accommodations to one or two employees must provide similar accommodations to all pregnant workers regardless of any other criteria. The court also rejected the position of the Equal Employment Opportunity Commission (EEOC), as expressed in guidance promulgated in July 2014 – after the court had granted certiorari in the case – that would have supported Young's position.

However, the court also was not persuaded by UPS's claim that the second clause simply defines sex discrimination to include pregnancy discrimination, because the first clause – which provides that Title VII's "ter[m] 'because of sex'...include[s] because of or on the basis of pregnancy, childbirth, or related medical conditions" – already accomplishes that objective, and thus UPS's interpretation would render the first clause superfluous. In the court's view, UPS's argument would entail eviscerating the Pregnancy Discrimination Act and ignoring its fundamental underlying intent.

Under the court's ruling, to demonstrate disparate treatment the pregnant employee must show that she was subjected to intentional discrimination. To make this showing, the employee must demonstrate that her employer's policies impose a "significant burden" on pregnant workers and that the employer has not raised a "sufficiently strong" reason to justify that burden. An employee may show that a significant burden exists by providing evidence that the employer accommodates a large percentage of non-pregnant workers without accommodating a large percentage of pregnant employees. Thus, policies that provide accommodations or light duty to some employees, but not pregnant women, will likely be considered to impose a significant burden for pregnant workers.

The court explained that 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" accommodated by the employer. While the court did not explain what justifications are strong enough, a defence by the employer based on cost or difficulty is unlikely to prevail. Indeed, as Justice Breyer asked, "why, when the employer accommodated so many, could it not accommodate pregnant women as well?"

Impact on employers

Employers can ensure that they are in compliance with laws relating to pregnant employees by:

  • understanding that many state and local laws provide additional safeguards for pregnant women, including the relief sought by Young;
  • reviewing accommodation, leave, scheduling and attendance policies to make sure that pregnant workers are not disfavoured;
  • considering amending existing policies to include accommodations based on pregnancy, childbirth or other related medical conditions, such as lactation;
  • making sure that light duty policies that apply to some categories of worker also apply to pregnant employees; and
  • training supervisors regarding the law and how to respond to a pregnant employee's need for accommodation.

Impact on EEOC guidance

While the Supreme Court's decision in Young effectively overturned a portion of the EEOC guidance, the balance was unaffected. The guidance includes a long list of best practices, including the following:

  • Leave related to pregnancy, childbirth or related conditions can be limited to women affected by those conditions. Parental leave must be provided to similarly situated men and women on the same terms.
  • Employers should review workplace policies that limit employee flexibility, such as fixed hours of work and mandatory overtime, to ensure that they are necessary for business operations.
  • Employers should ensure that employees who are on leaves of absence due to pregnancy, childbirth or related medical conditions have access to training, if desired, while out of the workplace.
  • Employers should review any light duty policies to ensure that the policies are structured to provide pregnant employees with access to light duty equal to that provided to people with similar limitations on their ability to work.
  • Employers should temporarily reassign job duties that employees are unable to perform because of pregnancy or related medical conditions, if feasible.
  • Employers should have a process in place to expeditiously consider reasonable accommodation requests made by employees with pregnancy-related disabilities and for granting accommodations where appropriate.
  • Employers should state explicitly in any written reasonable accommodation policy that reasonable accommodations may be available to individuals with temporary impairments, including impairments related to pregnancy.
  • Employers should ensure that anyone designated to handle requests for reasonable accommodations understands that the definition of the term 'disability' is broad and that employees requesting accommodations, including employees with pregnancy-related impairments, should not be required to submit more than reasonable documentation to establish that they covered disabilities.

For companies with employees in New York City, the Supreme Court's decision in Young will have little practical impact as New York City has already enacted a pregnancy accommodation law that parallels the EEOC guidance. While New York State does not provide similar protections, several other states have enacted comparable pregnancy accommodation provisions.

For further information on this topic please contact Kevin B Leblang or Robert N Holtzman at Kramer Levin Naftalis & Frankel LLP by telephone (+1 212 715 9100) or email (kleblang@kramerlevin.com or rholtzman@kramerlevin.com). The Kramer Levin Naftalis & Frankel LLP website can be accessed at www.kramerlevin.com.

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