In a recent U.S. Supreme Court case about pregnancy discrimination, Justice Breyer asked: “Why, when the employer accommodated so many, could it not accommodate pregnant women as well?”  As an employer, that is a question you should now be asking when preparing, reviewing, or updating your company’s accommodation policies.

Many employers have policies and practices to ensure accommodation of disabled workers or those with temporary injuries or disabilities. However, employers may be overlooking their legal obligations to accommodate another group of workers: pregnant women who have pregnancy-related work limitations.

In Young v. United Parcel Service, the Court addressed whether UPS’s treatment of a pregnant employee constituted pregnancy discrimination. Its decision effectively broadens the range of accommodations employers must provide to a pregnant employee.

Peggy Young was a UPS delivery driver. When Young became pregnant, her medical providers instructed her not to lift more than 20 pounds. As a result, Young was unable to fulfill UPS’s standard 70-pound lifting requirement. Young was not assigned to light duty or an alternate position, but was required to take a leave of absence while the lifting restriction remained in place. She was forced to take unpaid leave and lost her medical coverage during that time.

Several laws may offer protection for pregnant employees

In her lawsuit, Young claimed she had been the victim of gender- and disability-based discrimination under the Americans with Disabilities Act (ADA) and the Pregnancy Discrimination Act (PDA). Both laws require employers to provide accommodations to protected classes of employees – the ADA relates to persons with a qualifying or perceived disability, while the PDA relates to pregnant women. Young claimed that UPS was required under both laws to accommodate her pregnancy-related lifting restriction but failed to do so.

UPS argued that it treated Young the same as any other similarly situated non-pregnant co-worker. UPS also argued that Young’s pregnancy did not constitute a disability because the ADA does not view a pregnancy without complications as a disability.

While Young’s claims arose under these two laws, at least a dozen other states, including New Jersey, have enacted laws that similarly require reasonable accommodations.

Negative impact on the employee may matter more than the employer’s intent

So, did UPS do enough to accommodate Young?  UPS allows employees with non-pregnancy related conditions, such as injuries, to perform temporary light duty or desk duty. This option was not given to Young. But, that was not enough for the Court to rule completely in Young’s favor. Rather than give a clear cut answer on exactly what UPS was required to do, the Court sent the case back to the lower court with a set of instructions for evaluating claims of gender- and pregnancy-based discrimination. A plaintiff must show that:

  • She belongs to the protected class (i.e., is a pregnant woman);
  • She sought an accommodation;
  • The employer did not accommodate her; and,
  • The employer accommodated non-pregnant employees with similar limitations at work.

In theory, these factors, taken together, would show an employer’s intentional bias against the pregnant plaintiff.

As a defense, the employer can offer up its legitimate, nondiscriminatory reasons for denying accommodations. The Court warned that cost or convenience to the employer are not good enough reasons. In the final step of the inquiry, the plaintiff must show that the employer’s actions resulted in a “significant burden” on the employee. Policies and practices that categorically provide accommodations to certain employees, but not to pregnant women, will likely be found to impose a significant burden on pregnant employees.

Ultimately, the Court’s new framework probably means that the negative impact on the pregnant worker matters more than whether the bias was intentional. Thus, the Young decision makes it easier for a pregnant woman denied workplace accommodations to succeed in her legal claims.

What employers need to know

Even though the Court did not provide clear rules in its decision, it gave employers a number of prudent precautions to consider implementing:

  • Establishing and applying procedures for determining what accommodations are necessary and appropriate;
  • Training supervisors on how to recognize and respond to the accommodation needs of pregnant employees;
  • Considering pregnant employees when discussing accommodation policies.

In short, think back to Justice Breyer’s key question when creating or updating you accommodation, leave, scheduling, and attendance policies. The question should influence how your company thinks about this issue so that it does not have to answer it on the witness stand.

Marc Furman is the Chair of the Labor & Employment Group at Cohen Seglias, as well as a Shareholder and a member of the Board of Directors. For more than 30 years, Marc has limited his practice to providing representation and counsel to both union and non-union employers throughout the United States in all aspects of labor and employment law.

Catherine Nguyen is an Associate in the Construction and Labor & Employment Groups at Cohen Seglias. She represents a national client base of owners, developers, general contractors, subcontractors, and suppliers. She has secured wins for clients throughout the country in state, federal and appellate courts.