The Issue Of Accommodating Pregnant Employees May Reach The Supreme Court

Signaling that it is considering taking up the issue of what accommodations employers must provide for pregnant employees, the Supreme Court last month requested the Solicitor General’s opinion as to whether to accept the case of Young v. UPS for next year’s term.

The plaintiff in that case is Peggy Young, a delivery driver for UPS. Young took a leave of absence to undergo in vitro fertilization treatments; the treatments were successful, and Young became pregnant. She expressed interest in returning to work but, due to a lifting restriction imposed by her physician, was unable to return to her previous position as a delivery driver during her pregnancy. Instead, Young requested a temporary light duty assignment. Pursuant to the collective bargaining agreement with Young’s union, UPS provided temporary modified work assignments only in specific situations. UPS offered light duty assignments to employees who were injured on the job, who were suffering from a disability as defined by the Americans with Disabilities Act, or to drivers who lost their Department of Transportation certification due to, among other things, failed medical exams. As pregnancy itself is not considered a disability under the ADA, under UPS’s policy and the CBA Young was ineligible for light duty work based on limitations arising solely as result of her pregnancy.

Young went on an extended, unpaid leave of absence. She brought suit against UPS, claiming that its policy of providing light duty work to some employees but not to pregnant workers like herself violated the Pregnancy Discrimination Act. (The Pregnancy Discrimination Act amended Title VII of the Civil Rights Act of 1964 to clarify that discrimination “because of or on the basis of pregnancy, childbirth, or related medical conditions” was considered sex discrimination under Title VII.) Specifically, Young argued that UPS’s policy violated the PDA’s requirement that employers treat pregnant employees the same “as other persons not so affected but similar in their ability or inability to work.”

Both the trial court and the Fourth Circuit Court of Appeals ruled in favor of UPS. As the Fourth Circuit explained, Young’s discrimination claim failed because UPS’s policy was pregnancy-neutral and gender-neutral; that is, UPS did not deny Young’s request for light duty because of her pregnancy or gender. Moreover, as the Fourth Circuit noted, under UPS’s policy, employees who suffered other types of off-the-job injuries—for instance, an employee “who injured his back while picking up his infant child or on an employee whose lifting limitation arose from her off-the-job work as a volunteer firefighter”—would be ineligible for temporary accommodations. To find that UPS was required to accommodate a pregnant employee but not employees with other off-the-job injuries would be to give the pregnant employee preferential treatment, which the PDA does not require.

The Solicitor General has yet to weigh in, and it remains uncertain whether the Supreme Court will ultimately consider Young’s case. Regardless, however, the Supreme Court’s interest in the case is notable for employers—it is one of many recent signs that discrimination claims by pregnant employees may be on the rise. The EEOC has recently made clear that the pursuit of such claims is one of its top priorities for the near future, and plaintiffs’ attorneys have surely taken note. In addition, we have recently seen laws passed—in Maryland and New York City—which go beyond the PDA in requiring employers to provide accommodations to pregnant employees. In light of these trends, employers are advised to evaluate their accommodations policies and their effects on pregnant employees. Although the Fourth Circuit’s decision in Young is helpful for employers, that decision may not stand, and reliance on a policy that is technically “pregnancy blind” may not, in itself, be enough to protect an employer from a pregnancy-related sex discrimination claim.