On December 3, 2014, the United States Supreme Court heard oral argument in Young v. United Parcel Service, Inc., a case that will determine whether employers must provide pregnant employees with workplace accommodations, such as light duty work, under the Pregnancy Discrimination Act (PDA). The Fourth Circuit Court of Appeals previously held that UPS did not violate the PDA when it refused to accommodate a pregnant employee’s lifting restriction because she was treated the same as non-pregnant employees with work restrictions stemming from off-the-job injuries.
Peggy Young worked as a driver for UPS and, after she became pregnant, submitted a note from her physician stating that she could not lift more than 20 pounds. Young advised UPS that she could continue in her current position with the lifting restriction or work in an alternate light duty position. UPS denied her request pursuant to a policy providing that light duty work was limited to employees who: 1) were injured on the job, 2) qualified for an accommodation under the Americans with Disabilities Act, or 3) temporarily lost their Department of Transportation certification. Young was forced to take an extended unpaid leave of absence before eventually returning to work following the birth of her child.
After filing a Charge of Discrimination with the EEOC, Young filed a lawsuit claiming that UPS violated the PDA by not providing her with the same accommodations that it provided other employees who were similar in their ability to work. The U.S. District Court for the District of Maryland entered summary judgment for UPS, holding that it did not violate the PDA because its policy was gender neutral with respect to which categories of employees it allowed to work in light duty positions. The Fourth Circuit Court of Appeals affirmed, holding that “where a policy treats pregnant and nonpregnant workers alike, the employer has complied with the PDA.” The Supreme Court granted certiorari in July 2014 to consider the question of “[w]hether and, in what circumstances, an employer that provides work accommodations to nonpregant employees with work limitations must provide work limitations to pregnant employees who are ‘similar in their ability or inability to work.’”
EEOC Issues Enforcement Guidance on Pregnancy Discrimination
Shortly following the Supreme Court’s decision to grant certiorari in Young, the EEOC issued its Enforcement Guidance on Pregnancy Discrimination and Related Issues, which was the first comprehensive update from the EEOC on pregnancy discrimination since 1983. The Guidance provides that the PDA requires accommodations for pregnant women, irrespective of their pregnancy-related work limitations, if the employer accommodates non-pregnant employees with similar restrictions. Specifically, the EEOC stated that employers who offer light duty work to individuals injured on the job must provide a similar accommodation to a pregnant employee. The EEOC’s Guidance has been criticized given that it directly conflicts with the Fourth Circuit’s decision in Young and sets the agency on a collision course with the Supreme Court.
Supreme Court Argument
Passed in 1978, the PDA added pregnancy-related discrimination to Title VII’s prohibition on sex discrimination. During the oral argument in Young, the Supreme Court justices wrestled with the second clause of the PDA, which provides in part that “women affected by pregnancy” 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.” Young’s lawyer argued that this clause does not create an independent right to a workplace accommodation for pregnant employees, but that if an employer offers light duty work to some employees with workplace restrictions, it must offer the same accommodation to a pregnant employee with a similar restriction. Justice Antonin Scalia said that this would create “favored” treatment for pregnant employees. Justice Ruder Bader Ginsburg appeared to disagree, suggesting that UPS’ policy created a “least favored nation” status for pregnant employees. She further noted that such a policy was at odds with the EEOC’s recent interpretation of the PDA.
Near the end of the argument, Justice Elena Kagan challenged UPS’ lawyer, stating that the PDA “was supposed to be about removing stereotypes of pregnant women as marginal workers” and that UPS’ policy “accommodates some workers, but puts all pregnant women on one side of the line.” Interestingly, prior to the oral argument, UPS announced that, effective January 1, 2015, it would change its policy to allow temporary light duty-work to pregnant employees. However, it continues to contend that its policy was lawful and not in violation of the PDA.
Employers should closely monitor the Supreme Court’s decision in Young, which is expected by June 2015. While the EEOC Guidance could be rendered moot depending on how the Supreme Court rules, it currently remains in effect and employers should anticipate that the EEOC will process and investigate charges of discrimination accordingly. Further, irrespective of the Supreme Court’s ruling, employers must consider that a number of states have recently enacted laws requiring accommodations for pregnant employees. This creates a level of uncertainty for employers at a time when the number of pregnancy discrimination complaints to state and federal agencies has risen 37% between 1997 and 2013. Accordingly, employers should review and, where necessary, revise their anti-discrimination, accommodation, benefits, light-duty, and leave policies. Employers should also consider training for managers and human resources professionals to ensure that they are acting in compliance with the law.