Justices Will Review Accommodation Issue Arising Under Pregnancy Discrimination Act

From labor disputes cases to labor and employment publications, for your research, you’ll find solutions on Bloomberg Law®. Protect your clients by developing strategies based on Litigation...

By Kevin P. McGowan  

July 1 — Granting a United Parcel Service Inc. driver's petition, the U.S. Supreme Court July 1 agreed to review whether the Pregnancy Discrimination Act requires an employer to accommodate the work restrictions of pregnant employees when it does so for some non-pregnant employees with temporary impairments.

On the final day of its term, the court granted Peggy Young's request to review a U.S. Court of Appeals for the Fourth Circuit decision that the PDA didn't require UPS to accommodate Young's pregnancy-related lifting restriction even though the company offered light duty to workers injured on the job, those disabled within the meaning of the Americans with Disabilities Act and drivers who temporarily lost their federal certification (707 F.3d 737, 116 FEP Cases 1569 (4th Cir. 2013).

In seeking review, Young urged the Supreme Court to resolve a purported circuit court split on whether the PDA, which in 1978 amended Title VII of the 1964 Civil Rights Act, includes an obligation to accommodate a pregnant employee's work restrictions when the employer does so for non-pregnant workers similar in their ability or inability to work.

The Fourth Circuit disregarded the PDA's “plain statutory text” as well as the statutory purpose of prohibiting bias based on pregnancy, Young contended.

Solicitor General Advised Against Review

The solicitor general recommended against Supreme Court review, although it agreed with Young the Fourth Circuit and other federal appeals courts have erred in interpreting the PDA.

Review was unwarranted because the ADA Amendments Act, which took effect Jan. 1, 2009, “may lead courts to reconsider their approach to evaluating a pregnant employee's claim that other employees with similar limitations on their ability to work” were treated more favorably and “may diminish the adverse effect” of prior incorrect PDA decisions, the solicitor general said.

Young's case, which involved UPS placing her on involuntary leave after she became pregnant in 2006, arose before the ADAAA's effective date.

The Equal Employment Opportunity Commission currently is considering the adoption of new enforcement guidance that would address “a range of issues” regarding pregnancy under the PDA and the amended ADA, the solicitor general said.

“The publication of such guidance should clarify the [EEOC's] interpretation of those statutes with respect to policies like the one at issue in this case, thus diminishing the need for this court's review of the question presented,” the solicitor general said.

In a brief opposing review, UPS said the Fourth Circuit correctly ruled the employer's “pregnancy-blind” accommodations policy didn't violate the PDA. Young's case also is “a poor vehicle” for resolving the issue presented because all the relevant events predate the ADAAA, UPS said.

Does Current Law Require Accommodation?

By granting review, the Supreme Court is poised to decide whether the PDA in some circumstances requires ADA-like accommodation of employees who have work limitations because of pregnancy but seek to continue working.

The Pregnant Workers Fairness Act (S. 942/H.R. 1975), currently pending in Congress, would expressly amend existing law to require employers to grant reasonable accommodation for an employee's work limitations caused by pregnancy, childbirth or related medical conditions unless the employer can show undue hardship.

Young argued the PDA already requires accommodation of a pregnant employee's work limitations when the employer offers alternate work arrangements for non-pregnant employees “similar in their ability or inability to work.”

But Young argued in her petition for review the PDA already requires accommodation of a pregnant employee's work limitations when the employer offers alternate work arrangements for other non-pregnant employees “similar in their ability or inability to work.”

Young was working as a part-time driver handling air delivery packages when she became pregnant in October 2006 and physicians recommended a 20-pound lifting restriction.

Despite Young's stated desire to keep working at either her regular job or light duty, UPS told her company policy wouldn't permit her to work as an air driver with the lifting restriction and light duty wasn't available. The company placed Young on unpaid leave without health benefits coverage for the remainder of her pregnancy.

Young returned to work for UPS after she gave birth in 2007. But she sued, alleging UPS had violated the PDA by refusing to accommodate her work limitations while pregnant despite accommodating some non-pregnant employees similar in their ability or inability to work.

A federal district court in Maryland granted UPS's motion for summary judgment, reasoning the company made a “gender-neutral” decision not to accommodate Young, because UPS only offered light duty to drivers who were injured on the job, have an ADA-covered disability or had lost their Department of Transportation certification to drive.

The Fourth Circuit affirmed UPS didn't violate the PDA by limiting light duty to distinct categories of non-pregnant employees. Young argued UPS violated the PDA's command that pregnant employees “shall be treated the same” as non-pregnant employees “similar in their ability or inability to work.”

But the Fourth Circuit said the PDA's “shall be treated the same” language didn't establish a cause of action distinct from the act's general proscription on pregnancy discrimination. A contrary ruling “would imbue the PDA with a preferential treatment mandate that Congress neither intended nor enacted,” the appeals court said.

A pregnant worker with a temporary lifting restriction also isn't “similar in her ‘ability or inability to work' ” to an employee with an ADA disability, one injured on the job or one who has lost DOT certification, the Fourth Circuit said. It concluded Young failed to present direct evidence of pregnancy bias or a prima facie case of disparate treatment under the McDonnell-Douglas paradigm.

Textual Analysis Supports Claims

The Fourth Circuit disregarded the “clear statutory text” of the PDA, prior Supreme Court interpretations and the EEOC's reading of the act, Young argued in her Supreme Court petition.

The “unambiguous meaning” of “shall be treated the same” means an employer must accommodate a pregnant employee with work restrictions if it extends such accommodations to non-pregnant employees similar in their ability or inability to work, Young said.

The Fourth Circuit said reading the PDA's second clause in that way couldn't be reconciled with the act's first clause stating that “because of sex” or “on the basis of sex” under Title VII of the 1964 Civil Rights Act includes “because of or on the basis of pregnancy, childbirth or related medical conditions.”

But Young said nothing in the PDA's first clause “detracts from the plain meaning of the second clause,” that is, that if an employer accommodates non-pregnant workers “similar in their ability or inability to work” as pregnant employees, it must similarly accommodate the pregnant employee.

She cited United Auto Workers v. Johnson Controls, Inc.,, 499 U.S. 187, 55 FEP Cases 365 (1991), in which the Supreme Court said the PDA's second clause “mandates that pregnant employees ‘shall be treated the same for all employment-related purposes' as non-pregnant employees similarly situated in their ability or inability to work.”

Young disputed the Fourth Circuit's concern that “reading the PDA in accord with its plain text” would result in preferential treatment for pregnant employees.

“To the contrary, it would merely guarantee the equal treatment the statute demands,” she said. “It would simply require an employer that accommodates nonpregnant employees' work limitations to do the same for pregnant workers who are just as able to do the job.”

Circuit Conflict Over PDA Interpretation

The Fourth Circuit decision exacerbated a federal appeals court split on the PDA's meaning, Young said.

In Ensley-Gaines v. Runyon, 100 F.3d 1220, 72 FEP Cases 602 (6th Cir. 1996), the Sixth Circuit said the PDA doesn't merely recognize Title VII's ban on sex discrimination includes pregnancy discrimination but also gives “additional protection” to women affected by pregnancy, childbirth and related conditions by requiring employers to treat them the same as non-pregnant employers “similar in their ability or inability to work,” Young said.

The Sixth Circuit “expressly rejected” a rule that a pregnant employee must show a worker who received more favorable treatment was “similarly situated in all respects,” Young said. Rather, the Sixth Circuit said a PDA plaintiff need only show a non-pregnant employee similar in ability or inability to work received more favorable treatment in order to raise a PDA claim, Young said.

The Tenth Circuit agrees with the Sixth Circuit's PDA reading, while the Fourth Circuit's decision mirrors the approach taken by the Fifth, Seventh and Eleventh circuits, Young said. The Supreme Court should grant review to resolve the circuit split, she said.

Samuel R. Bagenstos of the Michigan Clinical Law Program in Ann Arbor, Mich., represents Young.

‘Pregnancy-Blind' Policy is No Violation

In its opposition brief, UPS said Supreme Court review is unnecessary because the Fourth Circuit correctly applied the PDA in Young's case and federal appeals courts “unanimously recognize that a pregnancy-blind accommodations policy” doesn't constitute disparate treatment.

UPS argued the Fourth Circuit correctly applied the PDA in Young's case and federal appeals courts “unanimously recognize that a pregnancy-blind accommodations policy” doesn't constitute disparate treatment.

When Young requested accommodation for her lifting restriction, UPS treated her “in exactly the same way it treats all employees—regardless of pregnancy—who are unable to perform essential functions of the job as a result of an off-the-job injury or condition,” UPS said.

Since UPS offered light duty only to certain categories of employees set out in a relevant collective bargaining agreement, granting Young her requested accommodation would have amounted to preferential treatment at odds with the labor agreement, UPS said.

The Fourth Circuit correctly ruled the employer's adherence to its “pregnancy-blind” accommodations policy didn't amount to disparate treatment under Title VII, as amended by the PDA, UPS said.

“Read as a whole, the PDA merely prohibits employers from using pregnancy as a criterion on which to grant or deny benefits,” UPS said. The act doesn't prevent employers from “using other criteria,” such as whether a job-related injury caused an employee's work limitation, to decide whether to grant accommodation, the company said.

“Because UPS's accommodations policy does not distinguish between employees ‘because of' or ‘on the basis of' pregnancy, it does not run afoul of the PDA,” UPS said.

The company also disputed Young's contention that a federal circuit conflict exists that requires the Supreme Court's attention. Rather, every federal appeals court to address the issue agrees “the application of a pregnancy-blind policy—such as the collective bargaining agreement at issue here—does not constitute ‘disparate treatment' prohibited by Title VII,” UPS said.

Mark A. Perry of Gibson, Dunn & Crutcher in Washington represents UPS.

To contact the reporter on this story: Kevin P. McGowan in Washington at kmcgowan@bna.com

To contact the editor responsible for this story: Susan J. McGolrick at smgolrick@bna.com

Text of Young's petition for review is available at http://op.bna.com/dlrcases.nsf/r?Open=kmgn-9llsws, the solicitor general's brief at http://op.bna.com/dlrcases.nsf/r?Open=kmgn-9llsvf, and UPS's brief at http://op.bna.com/dlrcases.nsf/r?Open=kmgn-9llt29.


Request Labor & Employment on Bloomberg Law