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Apr 06, 2015

Pregnancy in the workplace

By: Paul Ebeltoft

It is not often that I can follow an article that I wrote only three months ago with a United States Supreme Court decision. In an article published in the SAHRA newsletter for January 2015 entitled “UPS or OOPS” I told of the travails of Peggy Young’s battle with her employer, United Parcel Service. Here is the short story:

Ms. Young started working as a driver for UPS in 2006. In 2007, Young underwent in vitro fertilization and became pregnant. Her doctor recommended that she not lift packages heavier than 20 pounds while working. Even though Young claimed that her UPS job dealt almost exclusively with overnight letters, UPS said that its drivers must be able to lift packages weighing up to 70 pounds. Young was unable to fulfill this work requirement and, since she had used all of her available FMLA leave, she was forced to take unpaid leave during which time she lost her medical coverage.

Young sued UPS claiming that UPS violated the Americans with Disabilities Act and the Pregnancy Discrimination Act.

Who won?

In my January 2015 article, I challenged you to answer the question, “How would you decide?” I hope that you didn’t make any big bets – one way or the other.

While mostly touted as a victory for Peggy Young (and it was for her personally as it re-instated her lawsuit against UPS that had previously been thrown out), the Supreme Court actually did what Solomon threatened: it split the baby in two. It rejected going as far as either Ms. Young or UPS wanted. UPS argued that its policy on lifting restrictions was “pregnancy neutral”. UPS said, and the lower court agreed, that a neutral policy could not violate the law. Peggy Young insisted that she be given the same accommodation as granted to other workers with injury-related lifting restrictions.

The Court told Ms. Young that she could not demand an accommodation the same as offered to any other worker, in effect creating a special status under law for pregnant women. The Court told UPS that merely being pregnancy neutral did not save its policy. To rule otherwise, the court argues, would effectively repeal the Pregnancy Discrimination Act.

What the Supreme Court Said

A divided court set down a new standard for gauging the fairness of employer policies when tested in a pregnancy case. The key issues: Does an employer’s policy impose a “significant burden on pregnant workers”? And are “the employer’s legitimate, nondiscriminatory reasons … sufficiently strong to justify the burden…”? If the answer to the former question is “yes” and the latter is “no”, the pregnant worker, like Ms. Young has a claim. The claim can be proven, among other ways, by showing that “the employer accommodates a large percentage of nonpregnant workers while failing to accommodate a large percentage of pregnant workers.”

Is it all over now?

No. HR Professionals will still have their hands full. Removing some obstacles to successful litigation that unfairly treated pregnant women could not previously overcome, the decision is far from clear about what women must actually show by evidence in court to succeed. For example, does a pregnant worker claiming that your company’s policy is discriminatory need to identify those fellow-employees who were accommodated while she was not? If she can, how many such is enough to prove her case?

On the other hand, what kind of evidence must an employer produce to establish a legitimate non-discriminatory reason for the difference if the employer treats other workers differently than it treats a pregnant employee? The opinion gave precious little guidance about what employers can do to be safe, short of the very thing that the Court said was not required; provide an identical accommodation to the pregnant worker as it provides to the injured and the disabled.

These and many other questions remain unresolved by the Court’s decision.

The lesson learned
Charles Dickens had it right in 1840 when, in The Old Curiosity Shop, he described the law as “an edged tool of uncertain application.”

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Reprinted with permission from an article submitted for publication in the April, 2015 Southwest Area Human Resource Association newsletter.