The U.S. Supreme Court case decided this week makes it significantly more likely that pregnant women denied workplace accommodations will succeed in their legal claims against the employers who denied them.
The Court’s decision in Young v. UPS holds that there may be some situations in which employers can accommodate some groups of employees, without also accommodating pregnant employees, but then creates a test so strict that it in effect eliminates employers’ ability to do just that.
Peggy Young, the plaintiff in the case, worked for UPS as a pickup and delivery driver. When she became pregnant in 2006, her doctor restricted her from lifting more than 20 pounds during her first 20 weeks of pregnancy and 10 pounds for the remainder. UPS informed Young that she could not work because the company required drivers in her position to be able to lift parcels weighing up to 70 pounds. As a result, Young was placed on leave without pay and subsequently lost her employee medical coverage.
Young claims that her co-workers were willing to help her lift any packages weighing over 20 pounds and that UPS had a policy of accommodating other, non-pregnant drivers. At the time, UPS accommodated (1) drivers who were injured on the job; (2) drivers who lost their Department of Transportation certifications; and (3) drivers who suffered from a disability under the Americans with Disabilities Act. Young brought a federal lawsuit against UPS under the Pregnancy Discrimination Act of 1987.
The Pregnancy Discrimination Act amended Title VII of the Civil Rights Act of 1964 to clarify that Title VII’s longstanding prohibition of discrimination on the basis of sex includes a prohibition of discrimination on the basis of pregnancy, childbirth, and related medical conditions. Central to Young’s case, the Pregnancy Discrimination Act also requires that employers treat pregnant women “the same for all employment-related purposes . . . as other persons not so affected but similar in their ability or inability to work.” It is this clause that the Supreme Court’s decision in Young v. UPS interprets.
UPS argued that its decision not to provide an accommodation to Young was non-discriminatory because it followed a company policy that does not take pregnancy into account — a so-called “pregnancy-blind” policy. The Supreme Court disagreed, finding in Young’s favor after two lower courts had taken UPS’s side.
But as it turns out, despite finding in her favor — with Justice Breyer writing an opinion that was joined be all three female justices, and Chief Justice Roberts — the Supreme Court didn’t agree with Young’s interpretation of the law either. Young said that employers are required to accommodate pregnant women when they provide an accommodation to any other non-pregnant employee who is similar in ability to work. Breyer’s decision (and a separate concurrence written by Alito) did not buy into this analysis. However, that may not have much effect on the practical implications of the decision. The Court articulated a high legal burden employers will have to meet in order to justify
policies or practices that provide accommodations to some categories of employees, but not to pregnant women. The Court then remanded the case to the lower court to determine whether UPS can meet this burden here.
Under a “disparate treatment” theory of liability, as alleged by Young, an aggrieved employee must show that she has been intentionally discriminated against. The Supreme Court in Young found that to make this showing, the employee must demonstrate that the employer’s policies impose a “significant burden” on pregnant workers, and that the employer has not raised a “sufficiently strong” reason to justify that burden.
But what is a “significant burden,” and what is a “sufficiently strong” reason for imposing it?
An employee may persuade a court 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. For example, in Young’s case, she may show that UPS accommodates most non-pregnant employees with lifting limitations while categorically failing to accommodate pregnant employees with lifting limitations. Policies that provide accommodations or light duty to certain categories of employees, but not to pregnant women, will likely be found to impose a significant burden on pregnant employees.
As to evaluating the strength of an employer’s justification for imposing such a burden, the Court warned 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.” What justifications may be strong enough then, the court did not say, but sufficiently strong justifications based on factors other than cost or difficulty may prove to be rare. Further, the fact that an employer accommodates some employees tends to show that the employer does not have a good justification for not accommodating pregnant women also. As Justice Breyer put it: “why, when the employer accommodated so many, could it not accommodate pregnant women as well?”
It’s important for employers to understand that the Pregnancy Discrimination Act is not the only law that requires them to provide accommodations to pregnant women. The 2008 amendments to the Americans with Disabilities Act extended the scope of that legislation to require employers to provide necessary accommodations to pregnant women with pregnancy-related conditions that meet the definition of “disability” – and most now do meet that definition. Although the amended Act did not apply in Young’s case because it became effective after her case was filed, both the majority opinion and one of the dissenting opinions recognized the 2008 expansion of that law.
The law of pregnancy accommodation is becoming more complex, leading some lawmakers and advocates to call for clarity with a federal Pregnant Workers Fairness Act. The law would cover all pregnant women and ensure that the requirements are clear for employers and employees alike. In states where pregnancy accommodation laws have passed, there has in fact been a decrease in the number of pregnancy discrimination claims filed. There is also evidence that providing accommodations is good for business – it reduces employee turnover and absenteeism and boosts employee morale and productivity. Indeed, during the course of the Young litigation, UPS voluntarily changed its accommodation policy, even while maintaining that it was not required to do so by law.
Employers can make sure that they’re on the right side of the law by taking the following steps:
- Ensure that light duty policies that apply to some categories of employees, such as those with on-the-job injuries, apply also to pregnant women.
- Take a good look at other workplace policies to ensure compliance with both the Pregnancy Discrimination Act and the Americans with Disabilities Act’s mandates to provide accommodations to pregnant women. Employers in cities and states that have pregnancy accommodation laws will need to ensure compliance with those laws’ often more expansive requirements as well. Employers should review at least the following types of policies to ensure pregnant women are not disfavored: accommodation, leave, scheduling, and attendance. The easiest solution may be to simply amend existing policies and procedures to include accommodations on the basis of pregnancy, childbirth, or related medical conditions (including lactation).
- Establish procedures for determining what accommodations are necessary and appropriate.
- Train supervisors about how to recognize and respond to pregnant employees’ need for accommodation.
Most businesses already provide accommodations to pregnant women because they understand that it is in their best interest, and the best interest of their employees, to do so. The time has come for those who have not already complied to get on board. Liability under Title VII comes with not only compensatory and punitive damages, but often also hefty legal fees, which may far exceed actual monetary damages awarded. On the other hand, accommodations required by pregnant women are temporary and typically inexpensive. The smartest and safest course of action is to provide them.