By: Rob Dare and Dan Cohen – 3/27/15
On Wednesday, March 25, 2015, the U.S. Supreme Court issued a highly anticipated opinion addressing pregnancy accommodation in the workplace. In a 6-3 decision, the Court vacated the judgment of the Fourth Circuit, which had sided with the employer, and remanded the case for further proceedings consistent with the opinion. Young v. United Parcel Service, Inc., 575 U. S. ____ (2015). The plaintiff was a UPS driver that transported packages that arrived overnight by air, and as part of that job, UPS required employees to lift up to 70 lbs. When Young become pregnant, her doctor advised her that she could not lift more than 20 lbs, so UPS informed Young that she could not work while under lifting restriction. Young then filed suit, claiming UPS acted unlawfully by refusing to accommodate her pregnancy-related restriction. She supported her claim by pointing to UPS policies that accommodated workers injured on the job, that had lost Department of Transportation certifications, or that had disabilities covered by the ADA. In other words, she contended that these policies showed that UPS discriminated against its pregnant employees because it had a light-duty-for-injury policy for other persons, but not for pregnant workers. UPS simply responded that since Young was not injured on the job, did not lose a DOT certification, and did not have a disability under the ADA, UPS had not discriminated against her; it had treated her just as it treated all other relevant persons, i.e. those outside the categories. Both the district court and the Fourth Circuit Court of Appeals ruled in favor of UPS, finding that the policy was neutral, and not evidence of discriminatory animus toward pregnant workers.
The Supreme Court disagreed. The Court essentially rejected the arguments of both parties, and instead fashioned a framework by which similar pregnancy-related accommodation and discrimination claims will now proceed. First, the employee must prove she is a part of the protected group (able to become pregnant); that she asked for an accommodation in the workplace when she could not perform her normal job; that the employer refused to do so, and that the employer provided an accommodation for others who were similar in their ability or inability to work.
If the employee can prove each of those points, the employer then has the opportunity to show that its policy was not biased against pregnant workers, and that it had a legitimate, non-discriminatory business reason for its actions. If the employer articulates a legitimate, nondiscriminatory reason, the burden shifts back to the plaintiff to show that the employer’s reasons are a pretext for unlawful discrimination, i.e. that the reasons are not true. The Court added that an employee can show pretext by providing evidence that the employer’s policies impose a “significant burden” on pregnant workers, and the employer’s nondiscriminatory reasons are “not sufficiently strong” to justify the burden.
How does the decision impact employers?
The Supreme Court’s hybrid standard sets the bar quite high for employers. The employee may create a genuine issue of material fact that 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. Employees will in all likelihood be able to carry their burden by pointing to policies that provide accommodations or light duty to certain categories of employees, but not to pregnant women.
As for the strength of an employer’s justification for imposing such a burden, the Supreme Court cautioned that the employer’s 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.” The Court did not provide what justifications may be strong enough, but its message seems clear enough to employers: coming up with reasons other than cost or convenience will prove to be exceedingly difficult. Moreover, employers that accommodate some employees but not pregnant women will have to contend with Justice Breyer’s question: “why, when the employer accommodated so many, could it not accommodate pregnant women as well?”
Employers should take a closer look at its policies and re-evaluate why distinctions might be made between pregnant and non-pregnant employees with respect to light duty, leaves of absence, attendance, and scheduling. Employers might still be able to consider light duty preference for employees occupationally injured, since this is pregnancy-neutral, but employers must be careful here, and such preferences should not be inflexible if light duty is the only reasonable accommodation available. Finally, when granting light duty requests, employers should do so on an ad hoc temporary basis, taking into account the unique characteristics of each request.
One final caution: As the majority opinion noted, the ADA was amended in 2008, after Young’s case was filed, to include impairment that substantially limits a worker’s ability to lift, stand or bend, which could mean that pregnant women who cannot lift heavy objects are now protected under the ADA. Also now likely covered by the ADA amendments are many more pregnancy related impairments (e.g. anemia, pregnancy-related sciatica, gestational diabetes, etc.).