In July 2014, the Equal Employment Opportunity Commission (EEOC) issued guidance on pregnancy discrimination for the first time in 30 years.  That guidance is being put to the test, as the United States Supreme Court will hear oral arguments on Wednesday, December 3, 2014, in a case involving whether employers must accommodate pregnant employees to the same extent they accommodate other employees.

The case was brought by Peggy Young, a former delivery driver for UPS.  When Young became pregnant, her doctor issued lifting restrictions. UPS refused Young’s request for a light duty assignment, citing its policy of reserving light duty assignments to employees who are injured on the job, have a disability under the Americans with Disabilities Act (ADA), or where otherwise required under state law.

Young filed suit, alleging that UPS violated the Pregnant Discrimination Act (PDA). The Fourth Circuit sided with UPS and affirmed the lower court’s decision that UPS did not violate the PDA by refusing to grant Young the light duty assignment.  The court reasoned that the policy treated pregnant and non-pregnant workers alike, and was therefore compliant with the PDA.

Young appealed to the Supreme Court, which agreed to review the case. Just weeks after the Supreme Court granted review, the EEOC issued its updated enforcement guidance.  Significantly, the EEOC’s guidance states that “an employer may not refuse to treat a pregnant worker the same as other employees who are similar in their ability or inability to work by relying on a policy that makes distinctions based on the source of an employee’s limitations (e.g., a policy of providing light duty only to workers injured on the job).”  In other words, the UPS policy runs afoul of the EEOC’s guidance.  Interestingly, while maintaining that its policy is lawful, UPS has agreed to grant light duty assignments to more pregnant employees with lifting restrictions going forward.

Critics of the EEOC’s guidance argue that it creates an accommodation requirement that is not written in the statute.  The Supreme Court’s decision, anticipated in Spring 2015, is expected to bring some much needed clarity to the issue of whether, and the extent to which, an employer is obligated to provide accommodations to pregnant employees.  If the Supreme Court’s decision conflicts with the EEOC’s guidance, the Supreme Court’s decision will control.  We will monitor the case and provide an update when a decision is issued.