KMK Law Management Rights Blog

This Wednesday, December 3, 2014, the United States Supreme Court will hear oral arguments in the case of Young v. UPS, No. 12-1226, on appeal from the Fourth Circuit Court of Appeal.  The Young case has received significant attention because it asks the Court to directly address the question of what, if any, accommodation is required for a pregnant worker with work limitations under the Pregnancy Discrimination Act, incorporated into Title VII of the Civil Rights Act in 1978, where the employer provides work accommodations to non-pregnant employees with work limitations, such as those affected by on-the-job injuries or a disability as defined by the Americans with Disabilities Act. 

The Pregnancy Discrimination Act (“PDA”) provides that “women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes * * * as other persons not so affected but similar in their ability or inability to work.” 42 U.S.C. § 2000e(k).

Young v. UPS

Peggy Young was a part-time delivery driver for United Parcel Service when she became pregnant in 2006.  She sought an accommodation from UPS based on a restriction imposed by her doctor: no lifting of anything greater than 20 pounds in the first 20 weeks of pregnancy and nothing more than 10 pounds thereafter.

As an "air driver," Young asserts that she spent her mornings delivering mostly lightweight overnight letters and small packages, rarely anything coming close to 20 pounds.  Nonetheless, in light of her doctor’s restrictions, Young sought a "light duty" assignment of the sort the package delivery company granted certain other employees.  Until recently, UPS provided such accommodations for four categories of workers: those injured on the job, those with an impairment recognized under the Americans with Disabilities Act, those who lost their commercial driver's licenses because they were temporarily unqualified to drive, and those with pregnancy-related lifting or other physical restrictions "in compliance with state or federal laws, if applicable."  At the time of Young’s request, California was the only state to require accommodations for pregnant workers with physical limitations. 

UPS asserts that its conduct was lawful and followed a clear company policy: "Do not single out pregnancy for disparate treatment.”[1]  And, under that policy, Young was told that company did not permit light duty for pregnant air drivers because an essential function of the job was to be able to lift up to 70 pounds.

Broader Application of Young

The Young case has struck a cord with employers nationwide, and for good reason.

Three-quarters[2] of women entering the workforce today will become pregnant at least once while employed, and many will work throughout their pregnancies.  It is natural to assume, therefore, that some pregnant women will experience complications or physical effects that will result in physical limitations or cause them to ask their employers for a change of duties or other modifications. 

Moreover, the Equal Employment Opportunity Commission, on July 14, 2014 (13 days after the U.S. Supreme Court granted certiorari in the Young case) took an aggressive stance in its published guidance – requiring accommodation for pregnant employees limited in their ability to work – that appeared to many employers to be a departure from previously-settled law:

EXAMPLE 10

Employer Does Not Provide Equal Access to Light Duty

An employer has a policy or practice of providing light duty, subject to availability, for any employee who cannot perform one or more job duties for up to 90 days due to injury, illness, or a condition that would be a disability under the ADA. An employee requests a light duty assignment for a 20-pound lifting restriction related to her pregnancy. The employer denies the light duty request, claiming that pregnancy itself does not constitute an injury, illness, or disability, and that the employee has not provided any evidence that the restriction is the result of a pregnancy-related impairment that constitutes a disability under the ADA. The employer has violated the PDA because the employer's policy treats pregnant employees differently from other employees similar in their ability or inability to work.[3]

Implications for Employers Going Forward

Employers likely will receive guidance from the U.S. Supreme Court via its decision in Young as to when accommodations for pregnant workers are required and what type of accommodation might be reasonable and appropriate under the Pregnancy Discrimination Act.  This guidance, however, will be only part of the larger picture of employing pregnant employees or working with employees who become pregnant while employed.  First, the landscape of state law has changed since Young requested light-duty in 2006.  Currently, nine states[4] have laws that require some type of accommodation of pregnant employees.  Second, the amendments to the Americans with Disabilities Act (ADAAA), enacted in 2008, expanded the scope of covered impairments that qualify as disabilities to include those that substantially limit an individual’s ability to lift, stand or bend.  Thus, while pregnancy per se will not qualify as a disability under the ADAAA, the broadened scope of that statute may already require employers to accommodate pregnant individuals presenting lifting, standing, bending or other similar physical limitations. 

The take-away for employers is to conduct an independent review, on a case-by-case basis, every time an employee presents a physical limitation – regardless of the origin – or any time an employee requests an accommodation.  And, considering the thorny interplay of the Pregnancy Discrimination Act, ADAAA, and state law, employers are advised to consult with employment counsel both with respect to company policy as well as issues involving individual pregnant employees. 

[1] Walsh, Mark, Court to Weigh Whether Employers Must Accommodate Pregnant Workers with the Same Limits as Others, ABA Journal (Dec. 1, 2014) available at http://www.abajournal.com/magazine/article/court_to_weigh_whether_employers_must_accommodate_pregnant_workers/?utm_campaign=weekly_email&utm_source=maestro&utm_medium=email&job_id=141125CH  (as of 12/1/14) quoting Mark A. Perry, a lawyer representing UPS in the Supreme Court.

[2] Walsh, Mark, Court to Weigh Whether Employers Must Accommodate Pregnant Workers with the Same Limits as Others, ABA Journal (Dec. 1, 2014) available at http://www.abajournal.com/magazine/article/court_to_weigh_whether_employers_must_accommodate_pregnant_workers/?utm_campaign=weekly_email&utm_source=maestro&utm_medium=email&job_id=141125CH  (as of 12/1/14).

[3] EEOC Enforcement Guidance: Pregnancy Discrimination and Related Issues (July 14, 2014) (emphasis added) available at http://www.eeoc.gov/laws/guidance/pregnancy_guidance.cfm#other (as of 12/1/14).

[4] Walsh, supra.