The Pregnancy Discrimination Act of 1978 (“PDA”) prohibits discrimination based on pregnancy. The PDA also specifically provides that employers must treat “women affected by pregnancy…the same for all employment-related purposes…as other persons not so affected but similar in their ability or inability to work.” 42 U. S. C. §2000e(k). This language was the focus of the U.S. Supreme Court’s decision last week in Young v. UPS, 575 U.S. _____ (2015).
Ms. Young was a part-time driver for UPS. When she became pregnant in 2006, she was advised by her physician not to lift more than 20 pounds due to a history of miscarriages. UPS denied her request for an accommodation based on its facially neutral policies of accommodating only those individuals who fall within certain categories (e.g., on-the-job injuries, disabilities or loss of DOT certification). Young stayed home without pay during most of her pregnancy and lost health insurance coverage. She sued UPS for failing to accommodate her pregnancy.
The U.S. Supreme Court held that a plaintiff alleging disparate treatment pregnancy discrimination can survive summary judgment by providing sufficient evidence that the employer’s policies impose a significant burden on pregnant workers and the employer’s reasons are not sufficiently strong to justify the burden but rather give rise to an inference of intentional discrimination. A “significant burden” may exist when the employer accommodates a large percentage of non-pregnant workers while failing to accommodate a large percentage of pregnant workers.
The case was sent back to the 4th Circuit to decide whether Young created a genuine issue of material fact as to whether UPS’s reasons for denying her an accommodation were pretextual. In other words, the Supreme Court asked, “[W]hy, when the employer accommodated so many, could it not accommodate pregnant women as well?”
In light of this decision, employers should review all of their accommodation policies — including light-duty and restricted duty policies — for any significant burden on pregnant employees and should reexamine the reasons for the policies with a critical eye. Those policies that have the effect of granting accommodations to a disproportionately large number of non-pregnant employees but not to pregnant employees must be modified where the justification for those policies is not sufficiently strong, such as inconvenience, cost or reserving light-duty assignments for other employees.
Despite getting a lot of attention, the applicability of the Young v. UPS decision is fairly limited because of changes to the Americans With Disabilities Act (“ADA”) that took effect in 2008. The Young case arose before the ADA Amendments Act extended the definition of “disability” to include even temporary physical or mental impairments that substantially limit an individual’s ability to perform a major life activity, such as lifting, standing or bending. If the current definition of disability had been in effect during Young’s pregnancy, she probably would have been eligible for an accommodation under UPS’s policy for accommodating individuals with disabilities under the ADA.
While the Supreme Court’s decision provides useful insight on the type of policies that could lead to disparate treatment claims under the PDA, employers should be aware that the best way to avoid a PDA claim like the one in Young, or an ADA claim based on similar facts, is to analyze pregnancy-related restrictions and complications under the requirements of the ADA and engage in the interactive process for accommodating an individual with a disability.