The U.S. Supreme Court handed a defeat to United Parcel Service (UPS) this week. At issue was whether UPS violated the Pregnancy Discrimination Act (PDA) by requiring a pregnant woman with lifting restrictions to go on leave during her pregnancy, while workers in certain other categories (such as those with on-the-job injuries) were allowed light duty. We consider the ruling and the lessons it holds for employer leave and accommodation policies below.
In a decision announced March 25, 2015, the Supreme Court ruled that the district court, which had dismissed Young v. UPS (PDF) on summary judgment, must proceed to trial on the question of whether intentional discrimination occurred when a pregnant UPS employee was treated less favorably than others in similar situations.
The Court ruled in Young that under the PDA an employee can make a prima facie case of discrimination by showing that she was denied accommodation, while other sick or disabled workers with a similar inability to work were allowed accommodation. The employer then must show that it had a legitimate non-discriminatory reason for the difference in treatment to avoid liability, and if it makes such a showing the plaintiff can rebut the showing through evidence of pretext.
The Court provided a roadmap for demonstrating pretext, explaining that a plaintiff may reach a jury in circumstances where a light-duty policy that excluded pregnant women posed a significant burden on them, and where the legitimate non-discriminatory reason was not sufficiently strong to justify the burden, thus giving rise to an inference of intentional discrimination. The Court said that cost or convenience factors by themselves would be unlikely to justify a difference in accommodation provided to pregnant women with lifting restrictions. The Court also confirmed that the PDA requires equal, not better, treatment for pregnant women in the workplace—including in the case of accommodation.
This ruling underscores why employers should review their leave and accommodation policies to ensure they are consistent with the Americans with Disabilities Act (ADA), PDA and state law. It is important for employers to remember that other laws provide similar or more protection than the PDA. The ADA requires accommodation for temporarily disabled pregnant workers. Moreover, state laws in some cases (such as California, Oregon and Washington) provide as much or more protection to pregnant workers than provided by the PDA and the ADA (see this DOL chart comparing state laws). Employers should give particular scrutiny to light-duty policies for workers injured on the job when compared to light-duty policies for pregnant women (and other disabled workers with “off-the-job” limitations), to ensure that there are non-discriminatory reasons for different treatment and that they meet stricter state law requirements, if applicable. UPS itself voluntarily changed its light-duty policy to cover a greater number of pregnant workers as of January 1, 2015.
Employers should also be aware that, due to concerns about the timing and consistency of the guidance, the Court ruled in Young that it would not consider recent EEOC guidance requiring specific accommodations under the PDA regardless of whether the injury occurred on or off the job. As a result, that guidance is now under review by the EEOC.