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The AR Group

The Pregnancy Discrimination Act, Accommodation Issues, and Disparate Impact ? Oh My!

In Young v. United Parcel Service, Inc., the United States Supreme Court took up an accommodation issue involving a pregnant employee who alleged that denial of an accommodation constituted disparate treatment under the Pregnancy Discrimination Act (?PDA?).

Peggy Young was a part time driver for United Parcel Service of America, Inc. (UPS). When Young became pregnant, her doctor advised that she not lift more than 20 pounds unassisted. UPS, however, required that all drivers be able to lift up to 70 pounds and denied Young?s request for light duty assignment, saying she did not qualify. UPS regularly provided light-duty assignments or other accommodations to employees with on-the-job injuries, employees with disabilities, and drivers who lost U.S. Department of Transportation certification and were unable to drive.? Employees who did not fall into any of these categories (whether male or female) were not eligible for light-duty assignments. Thus, Young was required to take an extended unpaid leave of absence, during which time she lost her medical coverage.

Young returned to work at UPS two months after her baby was born and filed a federal lawsuit, claiming that its policy of providing light duty work to some employees but not to pregnant workers violated both the Pregnancy Discrimination Act (PDA) and the Americans with Disabilities Act (ADA).

Notably, Young only brought a disparate-treatment claim of discrimination. That type of claim can either be proven by direct evidence that a workplace policy, practice, or decision relies expressly on a protected characteristic or by using the burden-shifting framework in which a plaintiff must first establish a ?prima facie? claim of discrimination. Once established, then the burden shifts to the employer to show that it had a legitimate business reason not to accommodate the plaintiff. Generally, cost or convenience will not suffice. If the employer meets its burden, then the plaintiff must show that the employer?s reason is pretextual.

Application of Facts to Law:
Under the PDA employers are required to treat ?women affected by pregnancy . . . the same for all employment-related purposes . . . as other persons not so affected but similar in their ability or inability to work.? In Young, the plaintiff easily established that (a) she belonged to a protected class; (b) she sought accommodation; (c) the employer did not accommodate her; and (d) the employer accommodated others similar in their ability or inability to work. And, UPS was able to justify its refusal to accommodate Young by showing that it relied on ?legitimate, nondiscriminatory? reasons for denying the requested accommodation.

Could Young show that UPS? legitimate and nondiscriminatory reason offered was pretextual?

The Supreme Court majority concluded that a neutral reason for refusing to accommodate a pregnant woman is pretextual if ?the employer?s policies impose a significant burden on pregnant workers.? However, the majority also made clear that the PDA does not require an employer to treat pregnant employees the ?same? as ?any other persons.? Put another way, a pregnant employee does not automatically receive the best accommodation that the company has previously provided to a non-pregnant employee. Say what? That?s right. It is a bit confusing.

In terms of real ?guidance?, the good news is that the Supreme Court rejected the EEOC?s Guidance, which prohibited employers from denying ?light duty to a pregnant employee based on a policy that limits light duty to employees with on-the-job injuries.? And, we now know that employers are not limited to comparing a pregnant employee?s request to those employees performing the same or very similar jobs. But other than that — ? Since the Court effectively remanded this case back to the lower court to rule in accordance with these new guidelines, there is not much more authority on this issue that provides hard and fast assistance.

SMART TIP: In his dissent, Justice Scalia foreshadowed that this case could be a springboard for pregnant employees to pair a disparate treatment claim, like the one Ms. Young presented, with a disparate impact claim, where a facially neutral policy ?fall[s] more harshly on one group than another and cannot be justified by business necessity.? So, if you want to explain to a jury why you didn?t accommodate a pregnant employee, while having accommodated a non-pregnant employee who was injured on the job with the precise accommodation requested by the pregnant employee, you might want to consider the long and protracted cost of litigation culminating in a jury decision. Or, you could just provide the same reasonable accommodation to the pregnant employee and save the significant cost of litigation, plus a possible jury verdict for the plaintiff. It?s your call.