The Supreme Court Will Decide The Extent Pregnant Employees Must Be Accommodated Under The Pregnancy Discrimination Act

Nicholas Fortuna, July 25, 2014.

The Supreme Court will determine next term if pregnant employees are entitled to work accommodations due to their pregnancy under the Pregnancy Discrimination Act (PDA) of 1978. The case, Young v. United Parcel Service (UPS), was granted a Writ of Certiorari after the Fourth Circuit Court of Appeals ruled that United Parcel Service was not obligated to provide any accommodations to Ms. Young due to her pregnancy.

Ms. Young claims that UPS violated the PDA because it refused to temporarily modify her work duties to accommodate restrictions as a result of her pregnancy. The PDA provides that if an employer accommodates non-pregnant employees who are “similar in their ability or inability to work” as pregnant employees, it must “treat” those pregnant employees “the same.” Young’s job at UPS was an early morning “air driver.” She was responsible for meeting a shuttle at the airport bearing letters and packages for immediate delivery. Most of the packages delivered by Young were less than 20 pounds. Her job requirements, however, required her to be able to “lift, lower, push, pull, leverage and manipulate” letters and packages weighing up to 70 pounds and to assist in moving packages weighing up to 150 pounds.

In July 2006, Young sought, and UPS granted, a leave of absence to undergo in vitro fertilization and became pregnant. In October 2006, Young gave her supervisor a note from her midwife recommending that she not lift over 20 pounds during her pregnancy. UPS refused to make such an accommodation and forced Young to take a leave of absence until she was no longer pregnant.

UPS offers work accommodations in three situations: light duty for those with on the job injuries; those that are required to be accommodated under the Americans with Disabilities Act; and those who lost their Department of Transportation certification (typically for medical reasons), but not for pregnancy. The lower courts found that UPS’s policies were gender-neutral and did not constitute direct evidence of discrimination. The Fourth Circuit went further and concluded that Young’s temporary restriction was not covered by the PDA and no separate cause of action existed to pursue accommodations due to pregnancy under the PDA. Notably, the Sixth Circuit has adopted the position Young has pressed in Ensley-Gains v. Runyon.

At the Supreme Court, Young will argue that UPS’ gender neutral accommodations, which are not offered to pregnant employees, violate the PDA. The Court will have to resolve the conflict between the Fourth and Sixth Circuit Court of Appeals and decide whether the PDA provides added protection to pregnant employees.

On July 14, the Equal Employment Opportunity Commission (EEOC) jumped ahead of the Supreme Court and issued guidance on pregnancy discrimination in the workplace, creating headaches for employers. The EEOC’s guidance essentially tracks what Young is seeking from the Supreme Court and requires employers to offer reasonable accommodations to pregnant employees. Unless the Supreme Court gives Young exactly what she asked for, employers who have modified their policies to comply with the EEOC’s new guidance will then have to change their policies to comply with the Supreme Court’s ruling, while those who wait to see what the Supreme Court does will be on a collision course with the EEOC until there is a ruling.

Two of the EEOC commissioners voted against issuing the guidance precisely because they thought it was “unwise” to issue guidance now, in light of Young’s potential for mooting any standards or practices instituted based on the new guidance. The two commissioners who voted against issuing the guidance have stated they are worried that the EEOC’s credibility is at risk.

Nevertheless, the guidance issued by the EEOC lays out an expansive view of an employer’s obligations under the PDA and imposes a reasonable accommodation requirement. The EEOC will likely have to backtrack at least somewhat after the Supreme Court decides Young.