The Supreme Court Issues Guidance on Employers' Obligation to Accommodate Pregnant Workers

On March 25, 2015, the U.S. Supreme Court issued its decision in the Young v. United Parcel Service, Inc. case. Employers and employees alike were hopeful that the Court would provide much-needed guidance about when and how employers are required to accommodate pregnant workers, particularly with respect to providing light duty. While the Court provided some guidance, it did not resolve the issue directly and employers are still left with a difficult decision.

In the Young v. UPS case, Young, the female plaintiff, was a delivery truck driver for UPS when she became pregnant. Young's physician placed her on light duty early on in her pregnancy due to a lifting restriction. UPS denied Young's request to work light duty because the requirement that she be able to lift more than 20 lbs. was an essential function of her job. Young was, therefore, forced to remain on an unpaid leave of absence during her pregnancy. UPS, however, did have a policy that allowed employees who had work-related injuries to work light duty. UPS also provided light duty to other types of employees, such as those who have disabilities. Employees who did not fall into any of the exceptions were not eligible for light duty assignments. The lower courts concluded that UPS's policy was lawful because the policy treated pregnant workers and non-pregnant workers alike.

Young's lawyers argued that UPS's policy providing light duty work for certain employees, but not for pregnant employees, violated the Pregnancy Discrimination Act ("PDA"). UPS argued that an employer may have a facially neutral policy so long as pregnant employees and non-pregnant employees are treated the same.

In deciding the case, the U.S. Supreme Court did not agree with either party. The Court confined its ruling to the issue of whether UPS's actions constituted a violation of the PDA, which states in part that "women affected by pregnancy, child birth or related medical conditions shall be treated the same for all employment-related purposes, including receipt of benefits under fringe benefit programs, as other persons not so affected but similar in their ability to work." The Court then created a new standard. Under the new standard, in order to establish a pregnancy discrimination claim, a pregnant worker needs to offer evidence that: (1) she is in a protected group (pregnant); (2) she requested an accommodation because of her pregnancy; (3) the employer refused the request for accommodation; and (4) the employer provided accommodations for others who are temporarily similarly unable to do their work. If the pregnant worker is able to provide this proof, the employer is obligated to show that it has a legitimate, non-discriminatory reason for denying accommodation. Legitimate reasons do not generally include cost or convenience. If the employer is able to produce such evidence, the employee has the obligation to demonstrate that the employer's reason was a pretext for discrimination. What's new is that, in proving pretext, the employee can argue that the workplace policy puts a "significant burden" on pregnant workers and that the employer's legitimate, non-discriminatory reasons are not "sufficiently strong" to justify the burden. The Court further explained that a pregnant worker 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 non-pregnant workers while failing to accommodate a large percentage of pregnant workers."

The Court ultimately found that there was a genuine dispute as to whether UPS provided more favorable treatment to at least some employees whose situation could not be reasonably distinguished from Young's. The Court sent the case back to the lower court to consider the evidence, consistent with the Court's new standard. And, while the Court did not give employers a definitive answer, the Court did reject the idea that an employer is necessarily required to provide light duty to a pregnant employee simply because it provides light duty to one set of employees, such as those injured on the job.

What should employers do now? Employers that have policies allowing for light duty for some employees should consider whether light duty should be made available for pregnant workers in similar circumstances. If an employer is not inclined to go this route, the employer should consider whether its policies impose a "significant burden" on pregnant workers and whether its legitimate, non-discriminatory reasons are sufficient to justify the burden. When making these decisions, employers should consider whether they are willing to litigate these issues to trial, as summary judgment will likely be more difficult to obtain under the Court's new standard.

Another concern that complicates this issue for employers is the definition of disability under the Americans with Disabilities Act ("ADA"). Employers must be mindful that the definition of disability under the ADA may now be interpreted in many circumstances to include short-term impairments when related to what we otherwise consider healthy pregnancies. Many employers will have a duty toreasonably accommodate pregnant employees under the ADA (as opposed to the PDA) by providing light duty. The bottom line is that, before employers refuse to provide pregnant employees with an accommodation such as light duty, they should consult with legal counsel.