U.S. Supreme Court Considers Pregnancy Discrimination Act at Oral Argument
On December 3, 2014, the United States Supreme Court heard oral arguments in Young v. United Parcel Service, 707 F.3d 437 (4th Cir. 2013), a long-anticipated and widely discussed case addressing the scope of the 1978 Pregnancy Discrimination Act ("PDA") as it relates to light-duty accommodations in the workplace. This case is relevant to employers for two reasons. First, if the petitioner's argument wins over the Court, employers across the country would be mandated to make independent accommodations for pregnant employees, regardless of the employer's current policy. Second, if the petitioner's argument loses under the PDA, the door is still open for a Title VII disparate impact claim, which, if successful, would require employers to amend their light-duty and paid leave policies nationwide.
The facts of the case are fairly predictable, and not uncommon in the realm of employment law and litigation. Ms. Young, the petitioner, drove trucks and delivered packages for UPS. Part of Ms. Young's job responsibilities was physically delivering the packages from the UPS truck to the recipient's door—a task that could entail heavy lifting. As a result of her pregnancy, Ms. Young was prescribed lifting restrictions, which affected her ability to carry heavy packages. Instead of the accommodation Ms. Young requested, and UPS denied, she took FMLA unpaid leave while her lifting restriction was in place and returned to work soon after her child was born. The general theory of her subsequent lawsuit filed against UPS was straightforward—expecting mothers should not have to go without an income for several weeks or months simply because their pregnancy subjects them to workplace limitations.
The UPS policy at issue in Young is similar to most policies used by employers throughout the country, including the United States Postal Service. The policy allowed light-duty accommodations only for on-the-job injuries that would be subject to workers' compensation and off-the-job events that affected an employee's Department of Transportation certification to drive UPS trucks. In the latter case, the decertified employee would, instead of driving trucks, work in the distribution department where they would engage in heavy lifting by sorting and loading the packages scheduled for delivery. Petitioner's argument asserts, under the PDA, pregnant employees are entitled to light-duty accommodations if any similarly situated employee is granted such accommodations, regardless of the source of the limitation. In other words, Petitioner argued that granting accommodations to employees who lose their DOT certification, but not to pregnant employees, constitutes discrimination under Title VII and the PDA.
While the question presented may seem straightforward, the Court recognized the difficulty in promulgating a general rule regarding pregnancy in the workplace when there is no clear comparator. Pregnant employees nationwide are discriminated against … compared to whom? Answer: Non-pregnant employees. Well, pregnant employees would certainly not be entitled to many accommodations given to senior citizen employees or permanently handicapped employees because these accommodations would have no effect. Further, accommodations like those UPS provides to decertified drivers would involve heavy lifting, which would not accommodate lifting restrictions due to pregnancy. You see the point. For a discrimination claim to succeed, the plaintiff must point to a comparator, or a similarly situated employee, who receives the requested accommodations as a matter of policy. Such a comparator does not really exist in this case, or in many pregnancy discrimination cases. As such, the Court pointed out this analysis becomes a "most favored nation" debate, wherein the argument becomes: if some class of employees receives an accommodation, then pregnant employees should also be accommodated in accordance with their limitations, regardless of the nature of the accommodation. In other words, by not accounting for the source of the limitation (i.e. injury, illness, disability, pregnancy), the relief sought demands independent accommodations relevant to pregnant employees if, indeed, any other class of employee is granted any accommodation.
The Court struggled with this analysis, in large part because the language of the PDA is not particularly instructive. The PDA reads, inter alia:
The terms "because of sex" or "on the basis of sex" include, but are not limited to, because of or on the basis of pregnancy, childbirth, or related medical conditions; and women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes, including receipt of benefits under fringe benefit programs, as other persons not so affected but similar in their ability or inability to work.
Pregnancy Discrimination Act of 1978, Pub. L. No. 95-555, 92 Stat. 2076 (1978). This language was meant to overturn the Supreme Court's decision in General Electric Co. v. Gilbert, 429 U.S. 125 (1976). In Gilbert, General Electric ("GE") maintained a disability program that paid employees weekly non-occupational sickness and accident benefits equal to sixty percent of their normal weekly earnings. Among the non-occupational sicknesses and accidents not covered under GE's program was pregnancy. A class of plaintiffs filed a Title VII gender discrimination claim, and the Court held GE's failure to include all non-occupational sicknesses and accidents, including pregnancy, neither amounted to gender discrimination nor had sufficient discriminatory effects on women to constitute a Title VII violation. Hence, with the PDA, Congress clearly aimed to equate pregnancy discrimination to gender discrimination. The scope of an employer's duty to accommodate pregnant employees under the PDA, however, is squarely at issue in Young.
During oral argument, Justice Breyer acknowledged the Court may be able to come to a decision in Ms. Young's favor (finding at least a question of fact to overturn the lower courts' summary judgment order and affirmation), but how then, Justice Breyer questioned, would the Court draft an opinion that applied to many or all pregnancy discrimination cases? Petitioner responded the second clause of the PDA infers employers may differentiate benefits or accommodations on any basis other than the source of the limitation for which the benefit or accommodation is necessary. But, as the Court pointed out, Petitioner's emphasis on the source of the disability as the crucial element of the analysis fails to account for reasonable differences in accommodations. As aforementioned, a senior citizen or permanently disabled employee may have the same lifting restrictions as Ms. Young, but the reasonable accommodations required may be vastly different. In other words, the nature, duration, and severity of a disability is an indispensable consideration when determining whether an employer must make an accommodation and what would constitute a reasonable accommodation under Title VII or the ADA.
Maybe the most significant aspect of oral argument in Young was the Court's acknowledgement that Petitioner elected to bring the wrong case. Because there is a glaring lack of an adequate comparator for a discrimination claim under the PDA and Petitioner's emphasis on the source of a disability is a flawed argument, Justice Breyer (supported by several other Justices) insisted that a Title VII disparate impact claim was the proper vehicle for this type of lawsuit. A disparate impact claim would allege that an employer's policy has adverse effects on pregnant employees and is, therefore, discriminatory under Title VII. In bringing a disparate impact claim, however, the claimant would have to show a potential for discrimination in an employer's policy for employee accommodations based on the availability of accommodations to a large number of classes in a large number of situations. Like with the PDA claim at issue in Young, proving a disparate impact claim on behalf of the pregnant employee class would emphasize a specific cause and require an employer's policy to allow for a significant amount of other accommodations for disabled or injured employees. Without holding employers simply must accommodate pregnant workers if they accommodate any workers (which refers back to the most favored nation argument), the Court would be hard-pressed to find a policy that allows for many workplace accommodations but excludes those for pregnant employees.
Employers should be mindful of the Court's upcoming decision in Young, but the debate that took place during oral argument is, perhaps, just as important as will be the final rule of law. The EEOC, pursuant to its recent Strategic Enforcement Plan, is strongly advocating mandatory accommodations for pregnant employees. For employers with few resources available for such accommodations, the issue is difficult to reconcile—all employers are limited by the number and type of jobs they offer and the industry in which they do business. If a middle-ground is available where pregnant employees can be accommodated and productive for your business, there is a strong incentive to explore such an option. If not, now would be a good time to reassess your policy with regard to accommodations to ensure it is facially neutral and does not grant accommodations to a large class of employee injuries or disabilities while excluding pregnancy.