Employee Benefit Plan Review: "Young v. United Parcel Service, Inc., Must Employers Provide Accommodations for Pregnant Employees?"
In an article published in the August 2015 issue of Employee Benefit Plan Review, Katy Willis and Matthew Scully provide insight on the outcome of the U.S. Supreme Court case, Young v. United Parcel Service, Inc., and how the decision will affect employers. While it may take years of litigation to flesh out the nuances of the ruling and for the Equal Employment Opportunity Commission (EEOC) to release guidance for employers, Willis and Scully recommend that companies be proactive and specific in their leave policies to avoid any ambiguity that could potentially lead to discrimination suits. Employers should carefully evaluate all policies, practices and responses related to pregnancy and an employee's ability to perform her job.
Young v. United Parcel Service, Inc., Must Employers Provide Accommodations for Pregnant Employees?
KATY WILLIS AND MATTHEW SCULLY
A pregnant employee informs her employer that she has a lifting restriction of 20 pounds and needs an accommodation because she cannot do her job. What should her employer do? In Young v. United Parcel Service, Inc., 1 the U.S. Supreme Court faced this issue and was tasked with deciding whether the Pregnancy Discrimination Act requires an employer to provide work accommodations to pregnant employees with work limitations.
Peggy Young, a part-time delivery driver for United Parcel Service, Inc. (UPS), became pregnant and her healthcare provider imposed a lifting restriction that precluded her from performing an important function of her job. Young requested an accommodation, but did not qualify for light-duty work assignment under UPS's policies-which only covered those injured on the job, who lost their Department of Transportation certification(s), or who suffered from a disability covered by the Americans with Disabilities Act (ADA) and, therefore, her request was denied. Young filed suit under the Pregnancy Discrimination Act alleging, among other things, that if UPS made accommodations for other workers it should have made accommodations for her.
SUPREME COURT'S DECISION
Both the district court and the U.S. Court of ApVials for the Fourth Circuit found in favor of 1JPS, concluding that UPS's policy was "pregnancy-blind" and that Young was different from the employees UPS was accommodating (those injured on-the-job, lacking certifications, or "disabled" under the ADA), but the Supreme Court disagreed, vacating the Fourth Circuit's decision and remanding for further consideration. To start, the Court wasted no time invalidating the Equal Employment Opportunity Commission's (EEOC's) July 2014 Guidance regarding pregnancy and pregnancy-related disabilities because it lacked the timing, "consistency" and "thoroughness" of "consideration" necessary to "give it power to persuade." The Court also rejected Young's argument-that if the employer accommodates some workers, it must always accommodate pregnant workers and UPS's argument-that the Pregnancy Discrimination Act does nothing more than redefine Title VII gender discrimination to include discrimination based on pregnancy. Instead, the Court concluded that the answer lay somewhere in the middle.
The Court held that a plaintiff could make a prima facie case of pregnancy discrimination by showing:
(1) The employee belongs to the protected class;
(2) The employee asked for an accommodation;
(3) The employer denied the request; and
(4) The employer granted accommodations to other employees with similar abilities or inabilities to work.
If the plaintiff makes out a prima facie case, the employer can rebut that case by offering a legitimate, nondiscriminatory reason for treating employees outside the protected class better than employees within the protected class. If the employer meets its burden, then the plaintiff must show that the employer's proffered reasons are pretextual. The burden-shifting approach probably sounds familiar (the McDonnell Douglas framework) but the devil but the devil is in the details.
Applying the McDonnell Douglas framework, the Court found that Young created a prima facie case of pregnancy discrimination. Her comparator evidence showed that UPS provided more favorable treatment to at least some employees whose situations could not be distinguished from Young. Next, the Court affirmed the Fourth Circuit's finding that UPS proffered a "legitimate, non-discriminatory reason" for denying Young's accommodation request because its policies were facially neutral and based on genuine business practices. The Court remanded, however, for a determination on whether UPS's proffered reasons were "pretextual" and that the true reason was pregnancy discrimination. In doing so, it gave a not-so gentle nudge to the Fourth Circuit that Young's evidence that UPS accommodated most non-pregnant employees with lifting limitations and had multiple policies accommodating non-pregnant employees would likely be sufficient to meet her burden.
WHAT DOES THIS MEAN FOR EMPLOYERS?
Young v. United Parcel Service, Inc. means there is now confusion where there once was clarity. It will take years of litigation to flesh out the nuances in Young, and, undoubtedly, the EEOC will issue new guidance regarding pregnancy and pregnancy-related disabilities, but in the meantime:
• Do evaluate leave policies. Do your leave policies provide light duty work for certain employees but not for pregnant workers?
• Do consider the impact your policies have on pregnant employees. Do your policies impose "a significant burden" on pregnant workers? What constitutes a significant burden is not clear, but if you have accommodated most non pregnant employees with similar limitations you could be in trouble. The Supreme Court noted that statistical evidence could be used as evidence of pretext.
• Do require that pregnancy related concerns and requests come to the human resources (HR) department. In this time of legal uncertainty, it is critical that HR has visibility to such requests and makes sure they are handled appropriately and consistently.
• Do enlist the use of legal counsel when presented with a pregnancy related accommodation situation. These scenarios can have multiple implications and can affect not only your company's future litigation, but also how you may implement policies down the road.
• Don't forget to consider whether a pregnant employee who requests an accommodation is covered under ADA's expanded definition of disability to cover temporary conditions.
• Don't allow supervisors to make isolated decisions about light duty accommodations. These usually result in allegations of inconsistent treatment, because different supervisors will handle situations in different ways.
• Don't forget that leave time itself may be an "accommodation" of sorts. If a pregnant employee cannot do her job, termination is not the answer, but Family and Medical Leave Act (FMLA) or other forms of leave may be. Many employers fret over the usage of FMLA while the employee is pregnant, because she needs it for the birth of her child, but it may be the only option and is worth exploring.
• Don't make assumptions about pregnancy or an employee's ability to perform her job. By making assumptions, you may be discriminating. Also, even in these uncertain times, it still remains the employee's responsibility to ask for an accommodation.
• Don't be surprised if the EEOC investigates your pregnancy discrimination charges a bit more closely. Expect information requests and on-site visits. However, as the Court made clear, the EEOC's 2014 Guidance is invalid.
l. 575 U.S. - (Mar. 25, 2015).
Katy Willis is a partner and Matthew Scully is an associate at Burr & Forman LLP, practicing in the firm's Labor and Employment Law Group. The authors may be contacted at firstname.lastname@example.org and email@example.com, respectively.