The Background.
Young was a part-time driver for the United Parcel Service (UPS). When
she became pregnant, her doctor advised her that she should not lift more than
20 pounds. UPS, however, required drivers like Young to be able to lift up to
70 pounds. UPS told Young that she could not work while under a lifting
restriction. Young filed a lawsuit under
the Pregnancy Discrimination Act (she did not allege an ADA disability) and
claimed that UPS accommodated workers who were injured on the job, had
disabilities covered by the ADA, or had lost Department of Transportation (DOT)
certifications. 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.”
This dispute made
it to the U.S. Supreme Court who, on March 25, 2015, issued a ruling on the
case granting relief to neither party, setting forth a new standard for how to
consider pregnancy claims, and remanding for the trial court to consider the
evidence based on the new standard.
The Supreme Court’s Ruling. The
Court departed from the normal discrimination analysis to craft something new
for pregnant workers. The Court now held
that a pregnant employee can prove discrimination by showing that (1) she is
pregnant; (2) she sought an accommodation for her pregnancy—like the 20 pound
lifting restriction Young requested, and (3) that the employer did accommodate
others “similar in their ability or inability to work.” This standard is a departure from the
analysis used by courts to consider other forms of discrimination. In particular, there had never been a duty
under the PDA to “accommodate” a pregnant employee before but there now appears
to be. Further, in a traditional
discrimination analysis, the courts generally consider how other employees who
perform the same or similar work are treated. The new Young
analysis seems to broaden this by considering any employee who is similar in
his or her ability or inability to work.
This new standard remains murky and it will probably take several years
for courts to make rulings on what exactly this means.
The analysis,
however, does not end there. If a
pregnant employee can meet the above factors, the employer may then seek to
justify its refusal to accommodate the plaintiff by relying on “legitimate,
nondiscriminatory” reasons for denying accommodation. That reason normally
cannot consist simply of a claim that it is more expensive or less convenient
to add pregnant women to the category of those whom the employer accommodates. If the employer offers a “legitimate,
nondiscriminatory” reason, the plaintiff may show that it is in fact
pretextual. The plaintiff may reach a
jury on this issue by: (1) providing sufficient evidence that the employer’s
policies impose a significant burden on pregnant workers, and that the
employer’s “legitimate, nondiscriminatory” reasons do not justify the burden;
and (2) by providing evidence that the employer accommodates a large percentage
of non-pregnant workers while failing to accommodate a large percentage of
pregnant workers. As Justice Scalia
noted in his dissent, this standard may merge the disparate treatment and
disparate impact analyses. For the
uninitiated, disparate impact does not require proof of discrimination, only
that a company policy has an unwarranted negative impact on a protected
group. For instance, laying off the
highest salaried employees in a company may lead to termination of most of the
older workers, who tend to have higher salaries due to longer tenure.
In sum, the
new standard creates a duty to accommodate pregnant workers that never existed
before, articulates a new standard that could require several test cases to
clarify, and arguably imports the dreaded “disparate impact” analyses into a
pregnancy discrimination case. Justice
Scalia described the Court’s holding as “inventiveness posing as
scholarship—which gives us an interpretation that is as dubious in principle as
it is senseless in practice.”
What this means for Employers. There
is now, essentially, a duty to accommodate pregnant workers under the Pregnancy
Discrimination Act. In addition, under
the ADAAA, almost all ailments are potential “disabilities” as a matter of law,
including some “temporary conditions” depending on their severity. The bottom line for employers, it will be far
less expensive to treat pregnant employees the same as you would any other
employee who is able to work with similar restrictions as the pregnant
employee. Therefore, if you give
employees on workers’ compensation light-duty, you must now also offer
available light-duty to pregnant workers.
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