Employers should address accommodation issues with pregnant employees in the same manner they do with all other accommodation requests, and evaluate each situation on its own merits. With the ever-changing direction and interpretations of the Pregnancy Discrimination Act (PDA), employers need to stay informed and understand the legal principals surrounding the PDA protections in order to alleviate risk in their organization. BLR, Susan Schoenfeld, outlines some important information you should be familiar with.
The Pregnancy Discrimination Act (PDA) has been around since 1978 when Congress amended Title VII of the Civil Rights Act, adding a new provision to Title VII. The PDA defines discrimination “because of sex” to include discrimination because of, or on the basis of, pregnancy.
The PDA applies to employers with 15 or more employees and requires that those covered employers treat women affected by pregnancy, childbirth, or related medical conditions in the same manner as other applicants or employees who are similar in their ability, or inability, to work.
Sounds simple, right? Well, turns out that the interpretation of the PDA has evolved over the years since 1978 and the protections due to pregnant employees have changed along with it. Due to recent changes in the EEOC’s interpretation of the PDA’s and courts’ interpretations, employers have to stay aware in order to keep in compliance with the law.
Supreme Court Decision in Young v. UPS
In March 2015, the U.S. Supreme Court’s decision in the case of Young v. UPS prompted some changes in how the PDA will be applied and interpreted by the EEOC.
In the Young case, the plaintiff, Peggy Young, was unable to perform her job as a delivery driver for UPS during her pregnancy because her doctor imposed lifting restriction on her due to pregnancy-related health complications. Young requested a temporary light duty assignment, but UPS denied her request based on the collective bargaining agreement the company had with the drivers’ union.
The collective bargaining agreement with Young’s union provided temporary modified work assignments only for drivers who:
- Were injured on the job;
- Suffered from a disability as defined by the ADA; or
- Lost their Department of Transportation certification.
At issue in the Young case was that provision of the PDA saying that employers must treat women affected by pregnancy, childbirth, or related medical conditions in the same manner as other applicants or employees who are similar in their ability, or inability, to work.
In this case, UPS treated Young like employees who suffered off-the-job injuries and were not entitled to accommodations. Young argued that she should have been given the sameaccommodations UPS gave to nonpregnant employees who were similar in their ability or inability to work.
On the other hand, UPS urged that as long as an employer provided accommodations to pregnant women in the same way it provided accommodations to employees who were injured off the job (i.e., no accommodation), the employer could not be liable for pregnancy discrimination.
After careful consideration, the Supreme Court rejected both interpretations. Instead, the court held that a balancing test (known as McDonnell Douglas burden shifting) should be used to determine whether a pregnant employee has suffered employment discrimination as a result of her pregnancy.
In short, the Court held that Ms. Young created an issue of fact (and thus potentially requiring a trial on the merits of her case) as to whether UPS provided more favorable treatment to at least some employees whose situation cannot reasonably be distinguished to hers. The Supreme Court sent the case back to the lower court for further consideration.
In its decision, the Supreme Court roundly criticized the EEOC’s 2014 PDA guidance, saying it “lacked consistency,” and “thoroughness of consideration,” pointing out that the guidance ran “contrary to the litigation position the Government previously took,” that the EEOC offered no coherent reading of the statute.
Pointedly, the Court noted that the EEOC had put their 2014 guidance out hurriedly and “only after the Court had granted certiorari in this case”—implying that the EEOC was attempting to influence the Court.
Finally, and perhaps most significantly, the Court acknowledged that its holding may be of limited significance in light of the expanded definition of “disability” under the ADA Amendments Act of 2008 (ADAAA). The ADAAA was enacted after the Young case began and therefore did not govern the case, however the EEOC has interpreted the expanded definition of disability under the ADAAA to require employers to accommodate employees whose temporary lifting restrictions originate off-the-job. Courts have also applied this requirement to pregnant employees.
Employer’s next steps
After the Supreme Court’s decision, employers can take several steps to ensure that programs and policies do not run afoul of the law:
- Review light duty policies to ensure that if they apply to categories of employees, such as those with on-the-job injuries, they apply also to pregnant women. Consider whether the policy treats pregnant employees in the same manner as other applicants or employees who are similar in their ability or inability to work.
- Review (or establish) policies that include consideration of pregnancy or disability accommodation and ensure that the accommodation policy is reasonable and fair. Remember the ADAAA and how broadly health conditions are being interpreted as covered disabilities under the amendments to the ADA.
- Consider any state or municipal requirements for pregnancy accommodation and ensure that the employer’s policies take state and/or municipal rules into account.
- Train supervisors and managers on pregnancy accommodation and how to recognize the need for accommodation.
Since the Court’s decision
Since the Supreme Court’s decision in Young v. UPS, the EEOC issued new, revised guidance on the PDA. In Parts II and III of this series, we will discuss the EEOC’s new 2015 guidance and the impact the guidance will have on employers’ efforts to address and accommodate pregnant employees.
In the meanwhile, it has been reported that attorneys for Peggy Young and UPS have reached a settlement in Ms. Young’s case. Although the case may be over for Ms. Young, employers will need to follow and understand the changing body of guidance and case law surrounding pregnancy protection.