On March 25, 2015, the United States Supreme Court issued an important decision in the case of Young v. UPS, involving a claim of failure to accommodate in violation of the Pregnancy Discrimination Act (PDA). The PDA, which was enacted in 1978 as an amendment to Title VII of the Civil Rights Act of 1964, in part prohibits discrimination on the basis of pregnancy, childbirth, or related medical conditions. A second provision of the PDA also requires employers to treat pregnant women the same as other non-pregnant employees who are similarly situated with regard to their “ability or inability to work.” In the Young case, the court was presented with the issue of whether an employer’s policy that accommodates some non-pregnant employees with medical conditions, but which does not provide such accommodation to pregnant employees with similar medical conditions, violates this second provision of the PDA.
Young was a part-time driver for UPS. She became pregnant and, as a result of her pregnancy, was assigned a 20-pound lifting restriction by her doctor. At that time, UPS had policies that provided accommodation to certain categories of employees that included: 1) those injured on the job; 2) those who had lost their federal Department of Transportation certification to drive; and 3) those who had disabilities as defined under the Americans with Disabilities Act (ADA). However, because Young did not fall into any of these categories, UPS refused her request for light duty as an accommodation of her lifting restriction. Young filed suit against UPS for violation of the PDA. While she presented evidence in her case that UPS had provided light duty to other, non-pregnant employees with lifting restrictions, the lower court granted summary judgment for UPS and dismissed Young’s suit. The lower court reasoned that because UPS’ policies were “pregnancy-blind” (i.e., the policies equally denied accommodation to both pregnant and non-pregnant employees who did not fall into one of the three categories), Young could not establish that she was treated less favorably than other similarly situated non-pregnant employees. The Fourth Circuit Court of Appeals agreed with the lower court’s decision and affirmed the judgment in favor of UPS. Young then appealed to the Supreme Court.
On appeal, Young argued that whenever an employer accommodates even a small number of non-pregnant employees who are limited in their ability to work due to a medical condition, that employer automatically must accommodate all pregnant employees who have a similar inability to work – even if some other non-pregnant employees do not receive such accommodation. The Supreme Court’s majority ostensibly rejected this argument, stating that the PDA was not intended to grant pregnant workers such an unconditional “most-favored-nation” status. However, the Supreme Court’s majority then appeared to apply Young’s argument at least somewhat through the creation of a new test for how a violation of the accommodation provision of the PDA can be established. According to that test, a pregnant employee denied accommodation can establish a “prima facie” claim of pregnancy discrimination where she shows that the employer did accommodate others “similar in their ability or inability to work.” (In other words, a pregnant employee/plaintiff can satisfy this requirement by producing evidence that the employer provided accommodation to non-pregnant individuals with a work restriction similar to the plaintiff’s work restriction.)
Upon making this showing, and under the new test, the employer must demonstrate that its denial of the accommodation was based on a legitimate, non-discriminatory reason. However, and significantly, the Supreme Court’s majority substantially limited the employer’s ability to satisfy this burden by stating that the employer’s proffered reason normally cannot consist of a claim that it was more expensive or less convenient to add pregnant women to the category of those whom the employer accommodates. How an employer may prove that its policies of accommodation are based on legitimate, non-discriminatory reasons was left unclear by the Supreme Court.
Assuming that the employer can make this showing, under the Supreme Court’s new test the plaintiff may then rebut the employer’s explanation by proving that the employer’s policy imposes a “significant burden” on pregnant workers, and that the employer’s reasons for such policy are “not sufficiently strong to justify the burden.” The Supreme Court defines “significant burden” in this context as evidence that the employer accommodates a “large percentage” of non-pregnant employees while failing to accommodate a large percentage of pregnant employees. According to the Supreme Court’s majority, such evidence may be sufficient to allow a jury to infer that the employer intentionally discriminated against the plaintiff on the basis of her pregnancy.
Based on the foregoing new test, the Supreme Court vacated the lower court’s dismissal of Young’s case and that Young had created a genuine dispute as to whether UPS treated non-pregnant, similarly situated employees more favorably than Young. While the ultimate outcome of the Young case is not yet known, it is reasonable to conclude that the Supreme Court’s new test has made it far easier for a plaintiff to advance a pregnancy accommodation claim under the PDA past summary judgment. This will likely invite more PDA lawsuits against employers in the future. Employers should therefore review their light duty and other accommodation policies to ensure that pregnant employees are covered under those policies. This is a good idea not only for purposes of avoiding and defending against claims under the PDA, but also compliance with the employer’s duty to accommodate under the recent amendments to the ADA that now make it easier for temporary pregnancy-related medical conditions to be defined as a disability. As always, review of these important policies and assessment of possible legal risks should be conducted with the assistance of your employment counsel.