Employers Shouldn't Be Too Excited About That Pregnancy Decision . . . And More From The Price Is Right

by Constangy, Brooks, Smith & Prophete, LLP

Is this new UPS pregnancy discrimination decision really such great news for employers?

HINT: Check the dates!!!

The U.S. Court of Appeals for the Fourth Circuit* held this week that there is no "reasonable accommodation" requirement for pregnancy. The defendant, United Parcel Service, had a collective bargaining agreementStill_Pregnant_(2471857377).jpg that required it to offer light duty in two circumstances: (1) for work-related injuries, and (2) for non-work-related conditions that qualified as "disabilities" under the Americans with Disabilities Act. (UPS also offered "inside jobs" to employees who were not qualified to drive for various reasons, but the "inside jobs" were really just "non-driving jobs" and still entailed heavy lifting.)

*The U.S. Court of Appeals for the Fourth Circuit hears appeals from federal courts in the states of Maryland, North Carolina, South Carolina, Virginia, and West Virginia.

Plaintiff Peggy Sue Young was a part-time "air driver," meaning she drove to the airport in the morning and got packages that had come in by plane, loaded them into her truck, and delivered them. When she became pregnant, her doctor gave her a note saying she would be limited to lifting 20 pounds for most of her pregnancy, and only 10 pounds toward the end. Instead of giving her light duty, UPS required Ms. Young to take a leave of absence because it required lifting of as much as 70 pounds. Because Ms. Young wasn't "disabled," she didn't qualify for disability benefits, and she eventually lost her health insurance coverage. She did return to work after the baby was born.

Many thanks to William Tincup and Bryan Wempen, who allowed me to be their guest yesterday on DriveThruHR. If you missed the live webcast, all is not lost -- you can still listen to us on an "on demand" basis. (Scroll down to "On Demand," and January 10, 2013.) We talk about lawsuits by "desperate employees" and what employers can do to protect themselves.

Ms. Young, with some big guns on her side, including the American Civil Liberties Union and Legal Momentum (formerly the National Organization for Women Legal Defense and Education Fund) as well as other women's groups, argued that UPS was required to offer her a light duty position for the duration of her pregnancy as it did for workers' comp and ADA-disabled employees. But the Fourth Circuit said no -- all the Pregnancy Discrimination Act requires is that a pregnant employee be treated the same as a similarly disabled non-pregnant employee. Pregnancy isn't work-related, so she wasn't similarly situated to the workers' comp employees. In addition, a 20-pound lifting restriction wasn't "disabling," nor was a restriction that would vanish on its own several months hence.

The court's decision is clearly consistent with the language of the Pregnancy Discrimination Act, which prohibits discrimination against women because of pregnancy (or related medical conditions) but does not require reasonable accommodation, in contrast to the ADA and Title VII's "religion" provisions.

That said, here's why I think the decision is of limited use to employers going forward: Ms. Young's pregnancy was in 2007. You know what that means! In 2007, the "old" Americans with Disabilities Act was in effect, which had some pretty stringent definitions of who was considered "disabled." Not only was a 20-pound lifting restriction generally not considered "disabling," but virtually no temporary impairment, no matter how severe, was. And pregnancy is not a "disability" in itself because the ADA says so. Accordingly, Ms. Young was out of luck.


Pregnant_hot_tub.jpgBut pregnant employees can probably relax - at least, post-ADAAAaaahhhhhh.

On January 1, 2009, the ADA Amendments Act took effect. The ADAAA, of course, greatly expanded the definition of "disability," and the interpretations of the Equal Employment Opportunity Commission indicate that a temporary condition that lasts more than six months could indeed be considered "disabling." Ditto for a 20-pound lifting restriction.

Therefore, under the ADAAA,

*A pregnant employee with restrictions is arguably similarly situated to a non-pregnant employee with a non-work-related "disability."

*The non-pregnant employee with a non-work-related "disability" must usually be reasonably accommodated if the accommodation is not an undue hardship for the employer.

*The Pregnancy Discrimination Act requires that the pregnant employee be treated the same as her "disabled" non-pregnant counterpart.

*Therefore, even though reasonable accommodations are not required per se for pregnancy, if the employer offers reasonable accommodations to non-pregnant employees with "disabilities" (as it must under the ADA and ADAAA), then the employer probably has to do the same for the pregnant employee as well. Otherwise, the employer may be guilty of "discrimination" against the pregnant employee by offering reasonable accommodations to non-pregnant but not pregnant employees.

(Ain't the law fun?)

If you'll scroll to footnote 7 of the Fourth Circuit decision, you'll see that the court acknowledges the intervening enactment of the ADAAA and specifically says that it is declining to address how the ADAAA might have affected the result.

And, as I've reported earlier, the EEOC's new Strategic Enforcement Plan says that one of the agency's priorities will be to go after employers who require pregnant employees to take leaves of absence instead of allowing them to work for the duration of the pregnancy.

So employers (even UPS, going forward) should beware of relying too heavily on the Fourth Circuit decision. On the other hand, the ADAAA's impact arguably means that the Pregnant Workers Fairness Act, which would require reasonable accommodation for pregnancy and related conditions, is unnecessary.

All The Price Is Right pregnancy discrimination lawsuit news that's fit to print: In other pregnancy-related news, Employment Law360 (paid subscription required) reports that the lovely Shane Stirling, another model on The Price Is Right, is appealing the dismissal of her pregnancy discrimination suit against the producers of the show. This is about the 10 zillionth* TPIR model who has sued the show on this basis (I reported earlier on Brandi Cochran's $8.7+ million victory against the show.) Ms. Stirling hasn't done so well: in her case, the lawsuit was dismissed for lack of evidence that pregnancy was the reason for her termination. First, she was not terminated until about a year after her baby was born. Second, the show had evidence of legitimate, non-pregnancy-related reasons for letting her go -- specifically, that it was reducing the number of models in its "bevy" and wanted to keep the ones who were able to interact well on camera with host Drew Carey. Apparently Ms. Stirling didn't cut the mustard.

*Not a scientific figure.

Ms. Stirling contends that she would have been able to cut it if she hadn't been forced out of work for the duration of her pregnancy. She also alleges that Bob Barker, who was the emcee when she was pregnant, told her that her pregnancy was a "liability" for the show.


Bob_Barker_at_WWE_crop.jpg"This is Bob Barker, telling you to remember to have your pet -- and yourself -- spayed or neutered."

I'm not going to link to it, but for a clue as to why Ms. Stirling might not have been able to hold her own in witty repartee with PROFESSIONAL COMEDIAN Drew Carey, google "Shane Stirling" and "Maxim," and read the interview if you can afford to lose the IQ points. (Calls to mind poor Miss Teen South Carolina 2007, although at least she was just a kid, bless her heart, and didn't have the benefit of editing.)

Image credits: Wikimedia Commons.


DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Constangy, Brooks, Smith & Prophete, LLP | Attorney Advertising

Written by:

Constangy, Brooks, Smith & Prophete, LLP

Constangy, Brooks, Smith & Prophete, LLP on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.