Beware of Policies That Treat Pregnant Women Differently
In 1978, in direct response to a decision from the U.S. Supreme Court, Congress enacted the Pregnancy Discrimination Act (“Act”). That Act made clear that Title VII’s prohibition on discrimination “because of . . . sex” included discrimination on the basis of pregnancy, childbirth or related medical conditions. The Act also provided that “women affected by pregnancy, childbirth or related physical conditions shall be treated the same for all employment-related purposes . . . as other persons not so affected by similar in their ability or inability to work.”
Fast forward to 2006. United Parcel Service (“UPS”) had a policy that provided light duty for employees injured on the job, as well as for those who lost their DOT certification or had ADA disabilities. UPS did not provide temporary light duty accommodation to pregnant women with restrictions. Several courts had approved similar policies because the category of employees who would not receive temporary light duty also included male employees. In this case, for example, a man who had a temporary restriction based on an off-duty injury would not be restricted.
Peggy Young was a part-time UPS employee who became pregnant and received significant lifting restrictions. UPS did not accommodate them and placed her on unpaid leave. She eventually lost medical coverage. Although UPS returned her to work after her restrictions were lifted, she sued for pregnancy discrimination.
Young pointed out that a variety of other employees were accommodated under the policy. Accordingly, pregnant employees were treated worse than others with similar limitations. In addition, she claimed that UPS at times did accommodate males who did not fall into any of the categories covered under the policy.
In Young v. UPS, the trial court and court of appeals ruled in favor of UPS in essence because the policy denied leave to some males, as well as to pregnant females. In an opinion issued on March 25, 2015, the U.S. Supreme Court vacated the ruling in favor of UPS and sent the matter back to the trial court for further proceedings.
The Supreme Court said that Young could establish a prima facie case by showing that the policy placed a heavier burden on pregnant employees than others with similar restrictions. UPS could then justify its refusal to accommodate pregnant women by submitting a legitimate, non-discriminatory reason for the refusal. Upon such a showing, Young would be required to submit evidence that the stated reason was pretextual. The U.S. Supreme Court did not make a finding on the question of pretext, but sent the case back to the trial court for that analysis.
Notably, the U.S. Supreme Court commented in its opinion that the ADA amendments from 2009 and new regulations based on that law may limit the application of the decision in Young. Remember, Young became pregnant in 2006, and sued in 2007, which pre-dated the ADA amendments. Now the EEOC takes the position that temporary restrictions may be a disability, and thus require accommodation.
What is the lesson of all this? Frankly, it is the author’s belief that the wisest course of action is to ensure that pregnant employees are treated no worse than any other employee in connection with leave, benefits or any other term or condition of employment. If an employer desires to differentiate pregnant employees under a leave or accommodation policy, for example, that employer should be certain to: (1) have a legitimate, non-discriminatory basis for the differential treatment; and (2) follow its policy very consistently.