On December 3, the Supreme Court heard argument in  Young v. UPS, a case which could redefine employers’ legal obligations to accommodate pregnant employees.

Reports from the oral argument were mixed, with observers unsure of where the Court would go. However, it seemed clear that several of the female justices were skeptical of UPS’s claim that its policy of refusing to accommodate women who were pregnant was lawful.

UPS counsel was peppered with eight minutes of questioning by Justices Elena Kagan and Ruth Bader Ginsburg.  Justice Ginsburg seemed to take a clear stance in favor of Young and pregnant women. Justice Kagan likewise asked of UPS at one point:

“…the PDA was supposed to be about removing stereotypes of pregnant women as marginal workers. It was supposed to be about ensuring that they wouldn’t be unfairly excluded from the workplace. And what you are saying is there is a policy that accommodates some workers, but puts all pregnant women on one side of the line.”

However, all of the judges seemed to struggle over the legal question of where to draw the line, and when to require an employer to accommodate a pregnant employee. Thus, the result is still one that cannot be predicted.

Background – In 2006, plaintiff Young, a UPS delivery driver, became pregnant and her doctor certified that she should not lift more than 20 pounds. UPS policy required that its drivers be able to lift packages weighing up to 70 lbs., although the company contractually agrees to provide temporary alternate work, or “light duty,” to employees who sustain on-the-job injuries, have permanent disabilities, or have their drivers’ licenses suspended. Ms. Young put in a request for light duty, but the company deemed her ineligible because the restrictions were a product of her pregnancy, not an on-the-job injury or permanent disability. Ms. Young was forced to take unpaid leave and ultimately lost her medical coverage. 

After being put on leave by UPS, Young took a job with a florist, and reported that she regularly lifted packages that were more than 20 pounds. She also claimed that her UPS packages were usually small and light, and that it would have been easy for other workers to occasionally assist her, if she was confronted with a heavy package.

Ms. Young sued UPS, arguing that its policy of providing light duty to only certain employees runs afoul of the Pregnancy Discrimination Act of 1978 (PDA), which requires employers to treat pregnant employees the same as “other persons not so affected but similar in their ability or inability to work.” Construing this phrase has been a central issue of the case. 

The District of Maryland granted summary judgment for UPS after finding that Ms. Young had failed to identify any “similarly situated [non-pregnant] comparator who received more favorable treatment than she did.” The Fourth Circuit agreed, noting that while under the PDA it is clearly discriminatory to “treat pregnancy-related conditions less favorably than other medical conditions,” the UPS policy at issue was “pregnancy-neutral.” As the Fourth Circuit saw it, Ms. Young was asking for something more than what was legally required. Her pregnancy was akin to an off-the-job injury, for which any employee—male or female, pregnant or not—would not be guaranteed alternative work. To find otherwise, the court said, would re-interpret the PDA as a mandate for “preferential treatment” of pregnant employees. 

Since the Supreme Court’s July decision to hear the case, the plot has thickened substantially. In July 2014, the EEOC issued revised enforcement guidance on pregnancy discrimination, which effectively requires employers to accommodate their pregnant employees. Many critics see the EEOC’s new position as an attempt to hijack the Court’s determination. The guidance states: “Someone who, because of a back-impairment, has a 20-pound lifting restriction that lasts for several months would be an individual with a disability under the ADA . . . The same individual would be an appropriate comparator for PDA purposes to a woman who has a similar restriction due to pregnancy.”

The EEOC guidance has employers crying foul and scrambling to react. Meanwhile, many state and local legislatures, including New York City, have chosen to take matters into their own hands, passing laws that require employers to offer pregnant employees alternative work arrangements and other accommodations. And UPS, facing a public relations firestorm, has voluntarily changed its policy to allow alternative work for its expectant deliverywomen, though it maintains it had no legal obligation to accommodate Ms. Young.

With millions of Americans working while pregnant every year, savvy employers in every industry will be watching the Court’s Dec. 3rd arguments in Young v. UPS, which will have to resolve the mixed messages sent by the Fourth Circuit and the EEOC.