Impact of Young V. UPS and Steps for Employers
Since 1978, pregnancy and pregnancy related health conditions have been protected conditions under the Pregnancy Discrimination Act ("PDA"). A recent Supreme Court case, Young v. UPS may increase the ability of pregnant workers to sue their employer for failure to accommodate or disparate accommodation. Young claimed she had been a victim of both gender and disability based discrimination due to a denial of workplace accommodations available to other employees who had similar health related work restrictions.
Facts of Young v. UPS
Young become pregnant and her medical providers advised her not to lift more than twenty pounds. UPS's Employee Handbook requires that their employees (at least in the department where Young was working) be able to lift up to seventy pounds. Young was unable to meet this work requirement. She used all available leave, including her FMLA leave. UPS required Young to take an extended, unpaid leave of absence during which time she lost her medical coverage. Young returned to work at UPS. Subsequently she sued them claiming that she had been the victim of gender and disability based discrimination under the Pregnancy Discrimination Act based on disparate treatment.
The questions in the case related to whether or not Young was treated different than similarly situated co-workers, if UPS's decision was based on her pregnancy and whether or not UPS discriminated against pregnant workers. Young's position was that she was not offered a reasonable accommodation. UPS responded that they had accommodated "(1) drivers who had become disabled on the job; (2) who had lost their Department of Transportation (DOT) certifications; and (3) those who suffered from a disability covered under the Americans with Disabilities Act of 1990." UPS argued that pregnancy does not constitute a disability and that their policies were "pregnancy-blind" policies. The lower courts dismissed her claim and it was appealed to the US Supreme Court asking the court to consider whether or not the PDA requires an employer to provide the same work accommodations to an employee with pregnancy-related work limitations as to employees with similar, but non-pregnancy related, work limitations.
In a 6-3 majority, the Supreme Court focused on the second clause of the PDA - "women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes . . . as other persons not so affected but similar in their ability or inability to work . . . ." They further stated that "We doubt that Congress intended to grant pregnant workers an unconditional most-favored-nation status."  However, the Court placed a high burden on employers to show that their policies are not discriminatory to pregnant workers.
The case was remanded back to the lower courts. While the Young case may be seen as a split decision, the Court did provide employers with cautionary flags and a seemingly easier path to allow Young and other employees to sue their employers for workplace pregnancy discrimination.
What should Employers do?
There are three different laws that employers need to comply with that may intersect - the Pregnancy Act of 1978 as amended, Americans with Disabilities Act ("ADA") and Title VII Discrimination, specifically sex discrimination.
The EEOC is the governing body for both Title VII and PDA. Compliance information and guidance is found at http://www.eeoc.gov/laws/types/pregnancy.cfm. The EEOC is currently evaluating the impact of the Young case and likely will be issuing revisions to the Enforcement Guidance on Pregnancy Discrimination and Related Issues.  While awaiting these revisions, treatment of pregnant employees should be compared to the treatment of non-pregnant employees who are in similar jobs that have similar abilities and inabilities to work. Employers need to show that there was no disparate treatment between pregnant and non-pregnant employees who have similar inability to work, unless there are legitimate reasons for the treatment.
There are conditions related to pregnancy that may trigger conditions that could be covered under the ADA such as gestational diabetes or preeclampsia. Based on that, an employer may have to provide a reasonable accommodation for a pregnancy related disability absent any undue hardship. If companies provide unpaid leave for temporary disabilities, they must provide the same leave due to pregnancy related complications. For more ADA information, seehttp://www.eeoc.gov/laws/types/disability.cfm.
If a company has more than 50 employees, they must also comply with Family Medical Leave Act (FMLA) and pregnancy and pregnancy related conditions are covered by FMLA. Treat all temporarily disabled employees the same after FMLA has been exhausted.
The Title VII definition of unlawful sexual discrimination includes discrimination and/or harassment based on pregnancy, childbirth or related medical conditions.
• Review written policies regarding non-discrimination and harassment. Company policies cannot create disparate and/or discriminatory treatment and "pregnancy blind" policies may no longer be sufficient.
• Train supervisors and managers including how to provide accommodations for pregnancy related medical conditions and
• Keep personal and medical information relating to the pregnancy and other medical conditions confidential.
• Seek professional assistance from employment law attorneys.
The bottom line - always treat all similarly situated employees the same. Don't create policies that can be viewed to discriminate against pregnant women.
About the author: Gary J. Jaburg is the managing partner of the Phoenix law firm of Jaburg Wilk. He assists clients with employment and business matters, workouts of financial issues and business divorce. Got a question for Gary? Contact him here.
This article is not intended to provide legal advice. Always consult an attorney for legal advice for your particular situation.
 42 U.S.C. §2000e(k)
 2 EEOC Compliance Manual §626–I(A)(5), p.626:0009 (July 2014)