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Tuesday, October 7, 2014

Accommodations Under the Pregnancy Discrimination Act



Peggy Young worked for UPS as a part-time early-morning air driver. As an air driver, Young was responsible for meeting a shuttle from the airport, picking up packages, and delivering packages for immediate delivery.  Although most air delivery packages weighed less than 20 pounds, the ability to lift 70 pounds was listed as an essential job function of an air driver.

Young took a leave of absence to undergo in vitro fertilization; the round was successful and Young became pregnant.  During the pregnancy, her midwife recommended that she not lift more than 20 pounds.  Young gave her supervisor and UPS’s occupational health manager a note from her midwife stating the same, and expressed a desire to return to work in her regular capacity or on light-duty.

UPS denied Young’s request for an accommodation. Under UPS policy, accommodations are limited to instances where (1) an employee is injured on-the-job, (2) an employee has a permanent impairment cognizable under the ADA or (3) a driver loses Department of Transportation (“DOT”) eligibility due to any number of reasons, including vision impairments, sleep apnea, and high blood pressure.

Due to her inability to lift more than 20 pounds, UPS concluded that Young was unable to perform the essential functions of an air driver.  As a result, Young was forced to go on an extended, unpaid leave of absence, during which she lost of medical coverage.

Under the Pregnancy Discrimination Act (“PDA”), an employer cannot discriminate against an employee based on her pregnancy, childbirth, or related medical condition.[1]  Young sued UPS in the United States District Court for the District of Maryland, alleging that UPS violated the PDA by limiting accommodations to three categories and failing to provide pregnant employees the same accommodations as nonpregnant employees similar in their ability/ inability to work.

The PDA amended Title VII, clarifying the prohibition of discrimination because of sex; the PDA provides:

1)    The terms ‘because of sex’ or ‘on the basis of sex’ include ‘because of pregnancy, childbirth or related medical conditions, and
2)    Women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purpsoes….as other persons not so affected but similar in their ability and inability to work.

42 U.S.C. § 2000e(k).

The District Court granted summary judgment for UPS, concluding that the UPS accommodation policy turned on “gender-neutral” criteria and did not constitute discrimination.  Young appealed, and the Fourth Circuit affirmed the grant of summary judgment to the employer. The Fourth Circuit concluded that Young failed to establish a prima facie case of pregnancy discrimination due to her lack of a better-treated “similarly situated” employee.  In affirming summary judgment, the Fourth Circuit distinguished Young’s circumstances from those warranting accommodations under UPS policy.  Because she was not injured on the job, did not lose DOT certification, and was not considered permanently disabled, the Fourth Circuit distinguished Young’s physical impediment to those warranting accommodations under the employer’s policy.

The Supreme Court has granted certiorari to consider whether, and in what circumstances, an employer that provides work accommodations to nonpregnant employees with work limitations must provide work accommodations to pregnant employees who are “similar in their ability or inability to work.”

Under the courts’ reasoning, as long as accommodation policies are gender-neutral, an employer is insulated from PDA liability.  In affirming the denial of workplace accommodations to a pregnant employee, the District Court and Fourth Circuit disregarded the clear text of 42 U.S.C. § 2000e(k). Under UPS policy, if Young had been limited to lifting 20 pounds due to an on-the-job injury, she would have been entitled to an accommodation. Because the policy treats a pregnant woman with a lifting restriction differently than a nonpregnant employee with a lifting restriction, an argument can be made that UPS policy violates the PDA.

Currently, appellate circuits are split regarding application of the PDA to accommodation policies.  The Tenth Circuit, for example, explicitly stated that, in making a case of PDA discrimination, evidence that pregnant women were treated differently from other temporarily-disabled employees is sufficient at the prima facie stage. 

On December 3rd, the Supreme Court will hear arguments regarding application of the PDA.




[1] Although the EEOC issued guidance regarding the PDA on July 14, 2014, the Supreme Court’s ruling in Young v. UPS may render the EEOC guidance moot.

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