Supreme Court Delivers New Life to Pregnancy Discrimination Act Claim

In an eagerly awaited ruling expected to provide greater guidance on an employer’s obligation to accommodate pregnant employees, last week the U.S. Supreme Court established the standard an employee must meet to state a discrimination claim under the Pregnancy Discrimination Act (PDA) when an employer provides accommodations to non-pregnant employees, but does not provide the same accommodation for a pregnant worker. The case had generated significant attention over the last year, in part, because of the aggressive position taken by the employee and the U.S. Equal Employment Opportunity Commission (EEOC), claiming that any time an employer offered an accommodation to another employee with similar physical limitations, the employer had an absolute obligation to give the pregnant employee the same accommodation, without regard to the reasons the employer had provided the accommodation in one situation, but not the other. Though the Supreme Court rejected this aggressive position, it also rejected the employer’s position in the case and, accordingly, reversed the decision of the lower appellate court, which had affirmed the employer’s original victory on the employee’s claim of discrimination.

The employee in the case was a part-time driver for United Parcel Service of America, Inc. (UPS), who was medically advised to not lift more than 20 pounds after becoming pregnant. Because drivers had to lift up to 70 pounds as an essential function of the job, UPS told the employee she could not work while under the lifting restriction. The employee claimed this was discrimination on the basis of pregnancy by alleging UPS had policies to accommodate workers injured on the job — with disabilities covered by the Americans with Disabilities Act of 1990 (ADA) — or those who had lost U.S. Department of Transportation certificates, but had no policies for providing similar accommodations to pregnant workers.

In their arguments to the court, the employee and the EEOC claimed that because UPS had relieved other employees from lifting requirements for other reasons, the company had a per se legal obligation to provide those same accommodations to pregnant employees. The Supreme Court disagreed, relying on the logical notion that claims of intentional discrimination require evidence of motive to discriminate based on the protected characteristic at issue — in this case, pregnancy. The court, therefore, rejected a per se argument and concluded that a pregnant worker seeking to show disparate treatment must satisfy the McDonnell Douglas Corp. v. Green burden-shifting approach applied to all other claims of discrimination under Title VII, which the PDA amended when U.S. Congress passed it into law.

Under that analysis, the pregnant employee satisfies her initial burden by showing: (1) She is pregnant with restrictions; (2) She sought accommodation; (3) The employer did not accommodate her; and (4) The employer did accommodate others “similar in their ability or inability to work.” If the employer can then support a refusal to accommodate by relying on a “legitimate, non-discriminatory reason,” differentiating other employees from the pregnant one, the court explained that the employee could still “reach a jury” by providing evidence that the employer’s policies impose a significant burden on pregnant workers, and that the stated “legitimate, non-discriminatory” reasons are not strong enough to justify that burden. Having established the proper guidelines to analyze the employee’s claim, the Supreme Court sent the case back to the lower appellate court because the facts showed a genuine dispute as to whether UPS provided more favorable treatment to at least some employees whose situation could not reasonably be distinguished from the pregnant employees, leaving open questions about the employer’s motive for such differing treatment.

The practical effect of the ruling that becomes immediately clear is that employers should approach accommodation issues with pregnant employees the same way they do with respect to any other accommodation inquiry, and assess each situation on its own merits. In so doing, they will provide a defense for a pregnancy disability claim, as well as potentially other types of disability claims, even where no accommodation is possible. The case also raises questions about the risks of having a light-duty program limited only to individuals who have sustained workplace injuries, or any other light-duty programs that have specific requirements as to how can participate. If an employer can make a light-duty accommodation to workers who have limitations arising from one kind of situation, it will inherently raise questions as to the reasons and motivations for why an employer could not offer the same accommodation to someone with the same limitations that arise for a different reason.