“[W]hy, when the employer accommodated so many, could it not accommodate pregnant women as well?” This is the question the United States Supreme Court posed to the Fourth Circuit in Young v. United Parcel Service, Inc., as it voted 6-3 to revive a pregnancy discrimination case where a pregnant employee was denied an accommodation. This is the Court’s first ruling since 1991 on employers’ duties toward pregnant workers.
Peggy Young worked as a part-time driver for United Parcel Service, Inc. (“UPS”). Her responsibilities included pickup and delivery of packages. In 2006, Young became pregnant and her doctor told her that she should not lift more than 20 pounds during the first 20 weeks of her pregnancy and not more than 10 pounds thereafter. UPS required drivers like Young to be able to lift packages weighing up to 70 pounds and up to 150 pounds with assistance. UPS had a collective bargaining agreement with a union that provided for reassignments to be available to workers with job-related injuries, those who lost their driver’s certification, and those considered permanently disabled under the Americans with Disabilities Act. Because Young did not fall into any of those categories, UPS did not allow her to work while under her lifting restriction. Young subsequently brought action against UPS claiming she was discriminated under Title VII because UPS refused to accommodate her while giving temporary assignments to other employees.
After the Court agreed to hear this case, the Equal Employment Opportunity Commission (“EEOC”) issued new guidelines which provided that “[a]n employer may not refuse to treat a pregnant worker the same as other employees who are similar in their ability or inability to work by relying on a policy that makes distinctions based on the source of an employee’s limitations (e.g., a policy of providing light duty only to workers injured on the job).” Although urged to give weight to these guidelines, the Court refused because they lacked the timing, consistency, and thoroughness of consideration necessary to “give it power to persuade” because (1) the guidelines were issued after it agreed to hear this case; (2) the position of the guidelines is inconsistent with positions for which the Government has long advocated; and, (3) the EEOC did not explain the basis of its latest guidance.
The Court ultimately adopted a “middle ground” approach and rejected the positions of both parties. Young argued that whenever an employer accommodates only a subset of workers with disabling conditions, it must provide the same accommodation to pregnant workers even if other non-pregnant workers do not receive accommodations, thus providing pregnant workers with “most-favored-nation” status. UPS, on the opposite end of the spectrum, argued that employers should be allowed to have neutral policies like seniority systems and special preferences for workers who are injured on the job and that employers are not prohibited from denying pregnant women accommodations on the basis of an evenhanded policy (e.g., light duty only offered to those with on-the-job injuries, regardless of whether the employee is pregnant or not).
The Court determined that an individual pregnant employee may show a case of discrimination through the application of what is known as the McDonnell Douglas framework. There, the employee must first show that: (1) she is a member of a protected class (here pregnant); (2) she sought an accommodation; (3) her employer did not accommodate her; and, (4) her employer did accommodate others “similar in their ability or inability to work.” Once the employee shows this evidence, the employer may justify its refusal to accommodate the employee by relying on “legitimate, nondiscriminatory” reasons for denying her accommodation. If the employer shows such reasons, the employee may in turn show that the employer’s proffered reasons are in fact pretextual. Importantly, the Court stated that the legitimate, nondiscriminatory reason proffered by the employer “normally cannot consist simply of a claim that it is more expensive or less convenient to add pregnant women to the category of those (‘similar in their ability or inability to work’) whom the employer accommodates.”
The Court sent Young’s case back to the Fourth Circuit Court of Appeals. The Fourth Circuit is now tasked with considering the facts of this case under the Supreme Court’s standard outlined above.
Where do we go from here? It is important to note that after the Supreme Court agreed to hear this case, UPS changed its policy and now treats pregnant employees in need of reasonable accommodations the same as workers with on-the-job injuries, giving them light-duty assignments if available. Employers should review their reasonable accommodation policies with respect to allowing pregnant employees light duty assignments in light of the Court’s decision. It can also be anticipated that the EEOC will revisit its guidelines and try to reassert the very same position which was rejected here, but do it the right way.