The Pregnancy Discrimination Act (PDA) states 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 in-ability to work.”
What does this mean in the real world? UPS recently found out when it was sued for sidelining a pregnant employee who could not lift the 70 pounds UPS requires of its drivers. The US Supreme Court’s Young v. UPS decision now gives businesses around the country clear guidance as to how the PDA will apply to them.
under a lifting restriction.
Young sued UPS, claiming that it acted unlawfully in refusing to accommodate her pregnancy-related lifting restriction. Young presented several favorable facts that she believed she could prove. She pointed to UPS policies that accommodated workers who were injured on the job, had disabilities covered by the Americans with Disabilities Act of 1990 (ADA), or had lost Department of Transportation (DOT) certifications. Pursuant to these policies, Young contended, UPS had accommodated several individuals whose disabilities created work restrictions similar to hers. She argued that these policies showed that UPS discriminated against its pregnant employees because it had a light-duty-for-injury policy for numerous “other persons,” but not for pregnant workers.
UPS responded that, since Young did not fall within the on-the-job injury, ADA, or DOT categories, it had not discriminated against Young on the basis of pregnancy, but had treated her just as it treated all “other” relevant “persons.”
Two lower courts ruled in favor of UPS, but the US Supreme Court reversed and remanded the case for trial: “The record here shows that Young created a genuine dispute as to whether UPS provided more favorable treatment to at least some employees whose situation cannot reasonably be distinguished from hers.” The court noted that:
“The plaintiff can create a genuine issue of material fact as to whether a significant burden exists by providing evidence that the employer accommodates a large percentage of nonpregnant workers while failing to accommodate a large percentage of pregnant workers. Here, for example, if the facts are as Young says they are, she can show that UPS accommodates most nonpregnant employees with lifting limitations while categorically failing to accommodate pregnant employees with lifting limitations. Young might also add that the fact that UPS has multiple policies that accommodate nonpregnant employees with lifting restrictions suggests that its reasons for failing toaccommodate pregnant employees with lifting restrictionsare not sufficiently strong—to the point that a jury could find that its reasons for failing to accommodate pregnant employees give rise to an inference of intentional discrimination.”
HOW EMPLOYERS SHOULD PROCEED IN LIGHT OF YOUNG V. UPS
Any time a manager or owner considers whether or how to accommodate a pregnant employee, it should always ask: if I fail to provide a requested accommodation can it be argued that I have treated nonpregnant employees more favorably in the past? In other words, were accommodations made for nonpregnant employees that are not being offered to this pregnant employee? If the answer to these questions is yes, the employer is courting (so to speak) a pregnancy discrimination claim.
The same analysis applies when deciding whether to discipline or terminate a pregnant employee. Disciplining or terminating a pregnant employee often draws the highest level of scrutiny, particularly when the employee has no prior record of discipline. Indeed, one out of every five Title VII lawsuits involves allegations of pregnancy discrimination.
Pregnancy discrimination case involve a variety of fact patterns, including:
- refusing to hire, failing to promote, demoting, or firing pregnant workers after learning they are pregnant;
- discharging workers who take medical leave for pregnancy-related conditions (such as a miscarriage);
- limiting employment opportunities for pregnant women, such as by placing them on involuntary leave, refusing to let them continue working beyond a certain point in the pregnancy, reducing work hours, or limiting work assignments due to employer safety concerns;
- requiring medical clearances not required of non-pregnant workers;
- failing to accommodate pregnancy-related work restrictions where similar accommodations are or would be provided to non-pregnant workers;
- refusing to allow lactating mothers to return to work; and
- retaliating against employees – or those close to pregnant employees – who complained about pregnancy discrimination.
Businesses should carefully consider their options — and risks — when confronted with potential pregnancy discrimination situations. Avoiding pregnancy discrimination claims is not difficult if one understands the law and undertakes the steps contemplated in the Young v. UPS decision.
Art Bourque has guided businesses individuals on various aspects relating to pregnancy in the workplace. He has both defended and brought claims regarding pregnancy discrimination. Contact Mr. Bourque with any questions regarding pregnancy or other employment or human resource issues.