Alert: Supreme Court says pregnancy accommodation may be required

The U.S. Supreme Court ruled UPS may have intentionally discriminated against a pregnant driver when it denied her request for light duty during her pregnancy. The ultimate answer will depend on what she can prove in court. The driver’s doctor imposed a 20-pound lifting restriction during the first 20 weeks of her pregnancy, and 10 pounds after that. Her job required her to lift packages weighing up to 70 pounds, so she asked for light duty. UPS refused. Its policy at the time (which has since changed) restricted light duty to three categories of employees: (1) workers injured on the job; (2) workers with disabilities covered by the Americans with Disabilities Act (ADA); and (3) drivers who had lost their Department of Transportation (DOT) certifications.

To prove intentional pregnancy discrimination under Title VII of the Civil Rights Act, the Court said a worker may begin by showing that she was pregnant and asked for an accommodation, but the employer refused, while accommodating others who were “similar in their ability or inability to work.” Unfortunately, the Court didn’t explain how to compare employees to determine whether their situations are similar. However, once the worker presents these facts, the employer has the opportunity to show that it had legitimate, non-discriminatory reasons for denying the accommodation. The Court cautioned that an employer ordinarily cannot use cost or convenience as a legitimate, non-discriminatory reason. The worker then has an opportunity to show that the employer’s reasons are just a pretense. The worker can provide evidence that the company’s policy significantly burdens pregnant workers, and that its reasons for doing so are so weak that it’s reasonable to believe the employer intended to discriminate against pregnant workers. The Court sent the case back down to give the driver an opportunity to make her arguments (Young v. United Parcel Service, Inc., US, March 25, 2015).

Tips: Here’s the real nugget of guidance in the Court’s decision: To show that an employer’s policy imposes a significant burden on pregnant workers, an employee can provide “evidence that the employer accommodates a large percentage of nonpregnant workers while failing to accommodate a large percentage of pregnant workers.” The facts under this case arose before the January 1, 2009, effective date of the ADA Amendments Act, which significantly expanded the definition of “disability” under the ADA. Today, because it’s relatively easy to establish the existence of a disability, a large percentage of employees could be entitled to a reasonable accommodation if a medical issue interferes with their ability to do the essential function of their jobs. If you compare the percentage of nonpregnant workers who are accommodated under the ADA now, versus the percentage of pregnant workers who are accommodated, those percentages will likely be seriously skewed in favor of the nonpregnant workers if your policy doesn’t provide for accommodating pregnant employees. Be aware that there may be some overlap in these groups because although pregnancy itself isn’t a disability under the ADA, related conditions such as gestational diabetes may be ADA-covered disabilities.

Keep  in mind that light duty and reasonable accommodation are two different concepts. Light duty means assigning job tasks that are less physically or mentally demanding than the individual’s regular work, and may not even have any relation to the employee’s regular job. If you have a policy of limiting light duty to injured workers, it’s possible that this may still be acceptable depending on the situation, although it’s risky. Reasonable accommodation, however, means looking for creative ways to change how the regular job is performed, in order to allow the employee to perform the essential functions of the job. There is no option for limiting reasonable accommodations; the ADA requires you to consider reasonable accommodations for any individual with a disability, regardless of the source of the disability. This means that a large percentage of nonpregnant workers may already be entitled by law to an accommodation, so refusing to accommodate pregnant workers in the same way could be viewed by a court as intentional discrimination.

Pregnancy Disability Legal Guide:
Ensure compliance with federal and states laws should you receive a pregnancy disability accommodation request. Download and review our Pregnancy Disability Legal Guide today.