Should a pregnant employee be treated the same as a non-pregnant employee with a similar work limitation? The Supreme Court will hear argument on that simple yet hotly contested question on December 3, 2014 in Young v. United Parcel Service, Inc., on appeal from the Fourth Circuit. 707 F.3d 437, 441 (4th Cir. 2013).
It may seem common-sense that the Pregnancy Discrimination Act (“PDA”) currently requires employers to provide pregnant employees be treated “the same . . . as other persons not so affected” but who are similar in their “ability or inability to work.” But many companies nationwide are arguing that allowing pregnant women to seek accommodation is preferential treatment, even if their doctors have said that temporarily modifying their tasks or assignments will be necessary for a safe and healthy pregnancy. With the safety and livelihood of millions of women potentially at stake, the justices need only look to the facts of Peggy Young’s treatment at UPS, and the text of the Pregnancy Discrimination Act to reject these companies’ misreading of the law.
In October 2006, UPS driver Peggy Young requested a workplace accommodation in the form of a 20-pound lifting restriction during her pregnancy. Like many employees who are expecting, she needed the continued income and benefits and saw that UPS had accommodated non-pregnant employees with a similar lifting restriction. At that time, UPS offered light-duty work to employees injured on the job; employees who had an impairment recognized under the Americans with Disabilities Act and could continue to work, and even employees who had lost their license after driving while intoxicated.
Instead, UPS rejected Young’s light-duty request and pushed her to take unpaid medical leave: a manager told Young that he thought she was “too much of a liability” — and then told her to leave the building and not return until she “was no longer pregnant.” During her forced absence, Young lost income, and medical and pension benefits.
In the decision now under challenge, the Fourth Circuit refused to consider as “comparators” — that is, employees similar to Young in their ability or inability to work — the non-pregnant employees who did receive light-duty assignments, including those on a temporary basis such as those with on-the-job injuries or disabilities. The panel thus incorrectly disregarded evidence that UPS treated Young’s pregnancy less favorably than any other medical condition when it refused to provide her with an accommodation, and engaged in precisely the unlawful pregnancy discrimination that Congress intended to eliminate when it passed the Pregnancy Discrimination Act in 1978. Rather than providing Young with preferential treatment, UPS denied her equal treatment and penalized her economic stability.
Perhaps in no small part due to the EEOC’s issue of updated enforcement guidelines regarding discrimination against pregnant employees and parents of newborns this summer, UPS announced a change of heart in October: it would offer pregnant workers who require temporary light duty such positions, and not just to workers injured on the job. UPS may also have recognized that the legal landscape of disability law, under the ADA, experienced a sea change since Young brought her lawsuit because lawmakers have since broadened the definition of “disability” under the ADAAA. In the hands of lay managers like as the one that brusquely turned Young away, UPS’s policy is arguably a long-overdue update that complies with civil rights laws. In fact, the new ADAAA rules cover many work-related limitations that can apply during pregnancy, including anyone “with an impairment resulting in a 20-pound lifting restriction that lasts or is expected to last for several months.” 29 C.F.R. Pt. 1630, App. to Pt. 1630 (2014).
In short, it is also likely that regardless of how the Supreme Court rules in Young, under current law the broader range of comparators for pregnant workers like Young will enable more women to seek comparable and fair treatment.