The Pregnancy Discrimination Act extends Title VII’s prohibition against sex discrimination to include pregnancy. It also says that employers must treat “women affected by pregnancy . . . the same for all employment-related purposes . . . as other persons not so affected but similar in their ability or inability to work.” But what does this latter provision mean when an employer accommodates some but not all workers with nonpregnancy-related disabilities? That was the issue addressed by the Supreme Court’s decision in Young v. United Parcel Service, Inc. (March 25, 2015). Unfortunately the Young decision fails to offer clear guidance to employers, and is likely to lead to more litigation over the meaning of pregnancy discrimination in the workplace.
Young was a part-time driver for UPS. When she became pregnant, her doctor advised her that she should not lift more than 20 pounds. UPS required drivers to be able to lift up to 70 pounds and told Young that she could not work while under a lifting restriction. Young sued, claiming that UPS violated the PDA by refusing to accommodate her pregnancy-related lifting restriction. Young pointed to UPS policies that accommodated workers who were injured on the job, had disabilities covered by the Americans with Disabilities Act, or had lost Department of Transportation certifications. Young contended that under these policies, UPS had accommodated several workers whose disabilities created work restrictions similar to hers. She argued that these policies showed that UPS discriminated against its pregnant employees because it had a light-duty-for-injury policy for numerous “other persons,” but not for pregnant workers. Young argued that under the PDA, whenever an employer accommodates some workers with disabling conditions, an employer must accommodate pregnant workers who are similar in their ability to work, even if other non-pregnant workers do not receive accommodations.
UPS argued that since Young did not fall within its on-the-job injury, ADA, or DOT policies, it had not discriminated against Young on the basis of pregnancy, but had treated her just as it treated all “other” relevant persons. UPS argued that an employer violates the PDA only if it fails to offer pregnant women the accommodations it provides to others within a facially neutral category. For example, according to UPS, an employer can deny accommodations to pregnant employees as long as it denies accommodations to other workers with off-the-job injuries.
The Court rejected both arguments and held that: (1) a plaintiff may make out a prima facie case under the PDA by showing that she sought and was denied an accommodation, and that the employer accommodated others similar in their ability to work; (2) the employer may then seek to justify its refusal to accommodate the plaintiff by relying on legitimate, nondiscriminatory reasons for denying her accommodation – but those reasons normally cannot be simply that it is more expensive or less convenient to accommodate pregnant women; (3) if the employer meets its burden, the plaintiff may in turn show that the employer’s proffered reasons are pretextual by providing evidence that the employer’s policies impose a significant burden on pregnant workers, and that the employer’s reasons are not sufficiently strong to justify the burden, so as to give rise to an inference of intentional discrimination.
Under Young, the new “rules” on pregnancy discrimination are murky, and the analysis of a pregnancy discrimination claim will now be highly fact-specific. This state of affairs invites litigation and suggests that most cases will be adjudicated only after an expensive trial rather than at the summary judgment stage.
All of this is bad news for employers, except that the Young decision may effectively be moot. As the Court suggests toward the beginning of its decision, a different statute, the ADA Amendments Act of 2008, may require employers to accommodate pregnant employees with temporary impairments. Thus, employers would be wise to consider accommodating pregnant workers with impairments in order to avoid liability under the ADA, even if the employees’ rights under the PDA are unclear following Young.