by Renee Mielnicki, Esq.
As if there weren’t already so much to know as an employer pertaining to worker rights, last month the Supreme Court threw out something new. Most employers are probably aware of the Pregnancy Discrimination Act (PDA), a federal law that expanded Title VII’s prohibition against harassment and discrimination based on sex to include pregnancy, childbirth and related medical conditions. To be covered by Title VII, and the PDA, you must employ 15 or more employees. If you will recall, I previously blogged about the Equal Employment Opportunity Commission’s (EEOC) Enforcement Guidance on the PDA in my blog titled “EEOC Unveils a New Bundle of Joy for Employers.” In that blog, I referenced the EEOC guidance which explained that the EEOC interprets the PDA to require employers to grant the same reasonable accommodations as those that are granted to employees who are not pregnant. Thanks to a pregnant worker at United Parcel Service (UPS), we now have a recent ruling from the highest court in the country that provides a bit of clarity on some of our obligations as employers under the PDA.
Peggy Young was a pregnant driver at UPS. Due to her pregnancy, she was unable to lift any packages over 20 pounds. Her job description said she must lift packages of up to 70 pounds. Eventually, Young went on a leave of absence because UPS refused to accommodate her weight lifting restriction. Eventually, Young filed a lawsuit and alleged she was discriminated against based upon her pregnancy because others were offered light duty work who were similar in their inability to work. In support of her argument, she pointed to UPS’ policy and Collective Bargaining Agreement which gave light duty to workers if they: (1) were injured on the job; (2) had an injury under the Americans with Disabilities Act (ADA); or (3) were a driver regulated by the U.S. Department of Transportation (DOT) that lost their required government certification. UPS argued that since Young did not fall into any of the three categories, it treated her the same as it treated any other worker not falling into one of those three categories (for example, a non-pregnant worker injured outside of work, not disabled under the ADA or not losing certification from the DOT).
When deciding this case, the Supreme Court came up with the new “significant burden” standard. Here’s what that means in a nutshell. All discrimination cases undergo a burden shifting analysis in court. This burden shifting requirement comes from another court case and is referred to as the McDonnell Douglas burden shifting framework. In the context of pregnant workers, burden shifting would look like this. First, the plaintiff must have shown that she is pregnant, requested an accommodation, was denied and the employer accommodated others similarly situated in their ability or inability to work. The burden then shifts to the employer to show it had a legitimate, nondiscriminatory reason for the policy. Under this burden shifting framework, if the employee can show that the employer’s policy places a significant burden on pregnant workers, such will give rise to an inference that the employer discriminated against pregnant workers if the employer’s reasons are not sufficiently strong. A significant burden can be shown when the employer accommodates a large percentage of non-pregnant employees but does not accommodate a large percentage of pregnant employees. This is what happened in the Young case. The Court believed that Young presented enough evidence to show there was a dispute to show that UPS’ policy treated non-pregnant employees more favorably than pregnant workers without a reasonable explanation.
Confusing? Yes, I know. So what does this mean in real practice? It means that employers will need to re-examine their policies that pertain to accommodating pregnant workers. If they exclude those who are pregnant, employers will need to make sure that they have a legitimate, non-discriminatory reason for doing so. Therein lies the mystery going forward since the Court did not really say what would constitute such a reason. One clue the Court did give was that the proffered reason cannot be cost savings or convenience. Unfortunately, employers are left with no additional guidance aside from this. They will have to rely on the best judgment of themselves, or their legal counsel, and wait until the issue is litigated in the courts further.
As far as the EEOC’s guidance on the PDA, the Court made it clear that it placed no reliance on that guidance. While it is true that the EEOC can and probably will continue to enforce its interpretation of the PDA as set forth in its guidance, employers will be able to argue that its view and guidance are not controlling to the extent that it conflicts with the Young v. UPS decision.
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