Accommodating Pregnant Employees: Reviewing Employer Accommodation Policies in Light of the Supreme Court’s Decision in Young v. UPS
By Daniel Carrillo Gunning, Wilson Turner Kosmo LLP, San Diego, CA
Passed by Congress in 1978, the Pregnancy Discrimination Act requires employers to 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). Thirty-seven years later, the United States Supreme Court in Young v. United Parcel Service, Inc., addressed the question of what it means to treat pregnant employees “similar in their ability or inability to work” and specifically, how this provision applies in the context of an employer’s policy that accommodates many, but not all, employees with work limitations based on characteristics unrelated to pregnancy.
The Facts and History of Young v. UPS
Peggy Young, a part-time UPS driver, became pregnant and received restrictions from her doctor of no lifting more than 20 pounds during her first 20 weeks of pregnancy and no lifting more than 10 pounds for the remainder. UPS requires its drivers lift up to 70 pounds individually and up to 150 pounds with assistance, so based on Young’s restrictions, it determined she could not perform her regular job as a Driver, and placed her on an unpaid leave of absence. Young filed suit under the Pregnancy Discrimination Act, claiming her employer had intentionally discriminated against her on the basis of pregnancy by not accommodating her lifting restrictions.
Young argued she could prove intentional pregnancy discrimination because UPS had accommodated other non-pregnant employees who could not meet the lifting requirement. But the district court granted summary judgment to UPS, finding Young did not fall within the company’s pregnancy-blind accommodation policy and therefore was not “similar in her ability or inability to work.” UPS had a policy that accommodated workers (1) injured on the job, (2) who lost their Department of Transportation (DOT) Licenses, or (3) suffered from a disability within the meaning of the Americans with Disabilities Act (ADA), none of which applied to Young.
The Fourth Circuit Court of Appeals affirmed summary judgment for UPS, finding Young did not fall within one of the categories enumerated, and more closely resembled that of an employee who had been injured off the job and was ineligible for accommodation under the employer’s policies.
The Supreme Court Establishes a Framework for Analyzing Failure to Accommodate Pregnancy Claims
The Supreme Court reversed the lower court’s order granting summary judgment, but rejected the positions of both parties and remanded the case for further review in light of the new standards it announced. The Supreme Court first rejected Young’s argument that pregnant women should be accommodated the same as any other worker for any condition that similarly impairs their ability to work, reasoning this would create a “most favored nation” status inconsistent with the text of the statute. The Supreme Court also rejected UPS’s argument that an employer does not engage in pregnancy discrimination if it treats pregnant employees consistent with its pregnancy-blind accommodation policy.
Instead, the Supreme Court set forth its own framework under the Pregnancy Discrimination Act for analyzing failure to accommodate pregnancy claims. Applying the McDonnell Douglas burden-shifting framework, an employee alleging the employer failed to accommodate her pregnancy must first establish a prima facie case of pregnancy discrimination by showing she belongs to a protected class, she sought an accommodation, the employer did not accommodate her, and the employer accommodated others “similar in their ability or inability to work.” The burden then shifts to the employer to state a “legitimate, nondiscriminatory” reason for denying her accommodation. If the employer offers a legitimate, nondiscriminatory reason for denying her accommodation, the burden shifts back to the employee to show the employer’s reasons were pretextual.
The Supreme Court went on to say that an employee may show pretext (and thereby defeat summary judgment) with sufficient evidence the employer’s policies impose a “significant burden” on pregnant workers without “sufficiently” strong justification.
Employer’s Obligations Following Young v. UPS
Employers are cautioned to review how their accommodation policies apply in practice towards pregnant employees. For example, where an employer accommodates a large percentage of non-pregnant workers while not accommodating a large percentage of pregnant workers, this may give rise to an inference of discrimination. Or where an employer has multiple policies that accommodate non-pregnant employees with lifting restrictions, it may suggest that its reasons for failing to accommodate pregnant employees with the same lifting restrictions, is not sufficiently strong.
Moreover, employers should beware of the interplay between the Pregnancy Discrimination Act and the ADA. Statutory and regulatory changes to the ADA suggest temporary restrictions may be substantially limiting to qualify for an accommodation. The EEOC has taken the position that while pregnancy itself is not a disability, pregnancy-related impairments which impose work-related restrictions may be substantially limiting, and therefore trigger the duty to accommodate, even if only temporary.
And finally, as Justice Kennedy wrote in his separate dissent, many states have statutes and regulations that place affirmative duties on employers to accommodate pregnancy-related limitations. For example, California’s Fair Employment and Housing Act makes it unlawful for an employer to deny a request for reasonable accommodation and recently amended regulations require employers to engage in a good faith interactive process to identify and implement a pregnant employee’s request for reasonable accommodation. Thus, employers should review their policies to ensure compliance with Young v. UPS, the ADA, and their state’s pregnancy discrimination laws.