Why Discriminating Against a Pregnant Employee Was Bad For UPS [e171]

April 1, 2015

Nasir and Matt join forces again in San Diego to discuss the Supreme Court decision regarding the UPS discrimination against a pregnant employee and failure to provide reasonable accommodation.

Full Podcast Transcript

NASIR: All right. Welcome to Legally Sound Smart Business. My name is Nasir Pasha. I’ve already messed up. We’re recording live, that’s why.

MATT: You didn’t even mess it up. It was fine.

NASIR: Oh, yeah. Well, I think this is the first time I’ve messed up the intro. Hopefully this is the first time you’re listening to the podcast but this is where we cover business in the news and add our legal twist to that business news. My name is Nasir Pasha, once again.

MATT: And I’m Matt Staub.

NASIR: Don’t forget, you can catch us on now two websites. We have our legallysoundsmartbusiness.com which goes to all of our podcast posts but also pashalaw.pizza is something that we’re really proud of that you can check out as well.

MATT: Preeminent pizza law firm nationwide.

NASIR: Nationwide, based out of San Diego. Speaking of, that’s where we’re recording today, again, on the top floor of what’s this place again? Symphony Towers.

MATT: Yeah, I’m surprised you haven’t left yet. You’ve been here for a few days.

NASIR: I know.

MATT: This is live recording.

NASIR: That’s true. Listening to us live. If you’re listening to us now, just come on by. We will be here.

MATT: We did have some people try to come in on Monday’s episode.

NASIR: Oh, yeah, that was bad.

MATT: The fans.

NASIR: We almost got into a fight.

MATT: Speaking of fights…

NASIR: Yeah, speaking of fights, the news space went crazy on the Supreme Court case even though it’s pretty subtle as far as what it actually did.

MATT: Yeah, the case itself, there wasn’t. you know, a whole lot of meat in there, and I guess it still ended up getting sent down to a lower court as well, right?

NASIR: Yeah.

MATT: But, basically, it deals with discrimination and pregnancy. I thought it was funny how this was worded. “The court has put employers on notice that pregnancy is not a reason to discriminate.”

NASIR: Most people should already know that. It’s already in the law.

MATT: It’s like it’s already so difficult to get a case into the Supreme Court.

NASIR: It’s so hard to kind of translate the Supreme Court cases to a pop article, you know? They can be so subtle of a ruling that maybe only lawyers care about. There is new law; there is some new take out of this. But, in general, the only difference now is that there’s a little bit more clarification on how one proves there is discrimination in the workplace amongst those that are pregnant. Again, it’s a subtle issue but there’s actually a law that’s called the Pregnancy Discrimination Act. Like Matt said, there’s nothing new here. The question was, okay, how do you show if someone’s actually being discriminated against? Is it just take one or two other people that are in similar situations that are not treated the same way for there to be discrimination or is it something more than that? In this particular case, it was UPS – you know, I just saw a FedEx plane go by – I don’t know how that relates; I guess they’re competitors, that’s a little distraction. So, a UPS worker – I don’t know if they were a driver or not but – it was a woman who was in the early stages of the pregnancy and they had the doctor instructed her – I don’t know if this is normal or not but – instructed her that, “Okay, you can’t lift anything more than 20 pounds.” And so, she communicated that somehow. The nurse of FedEx said, “Okay. We don’t have any kind of…”

MATT: UPS.

NASIR: Oh, yeah, sorry. Of UPS, “We don’t have any kind of category exemption for you to fall under. You know, you don’t meet these ADA requirements, you don’t meet this, so you’re kind of out of luck.” And so, of course, the worker’s like, “Hey, that’s not fair. You’re discriminating against me because I’m pregnant,” because people that are in similar situations, for whatever reason, can’t lift more than 20 pounds or given accommodations. This was appealed and ended up in the Supreme Court.

MATT: Yeah. Also, it should be noted that, when she brought this up to her boss or supervisor, the supervisor told her to take unpaid leave instead of taking a break from heavy lifting.

NASIR: Oh.

MATT: That’s obviously not what you want to do.

NASIR: Yeah, that’s not the best way to handle it, you know? And so, the question is whether she belongs in a protected class, okay; whether she sought accommodation which it sounds like she did; and whether the employer did not accommodate her or not – it sounds like they did not; and whether the employer did accommodate others – and this is the key point – in similar in their ability or inability to work. So, this is really the question. How do you prove that a pregnant person – or pregnant woman, I guess you can’t say “pregnant man” – a pregnant woman is being discriminated against against non-pregnant women or non-pregnant people.

MATT: Well, yeah, you hit the nail on the head there, and that’s exactly what happened, I guess. I don’t know if this was in their employee handbook or how this works but she had asked for light duty because I think she was instructed not to lift over 20 pounds. I think their requirements were to lift 70 pounds and up which is actually kind of heavy.

NASIR: Especially for you.

MATT: Yeah.

NASIR: I like how you just ignored that insult.

MATT: Oh, I thought about it too long. And so, she pointed out that UPS had given light duty to other non-pregnant employees who had been injured on the job or employees with a disability. So, she’s saying, “Look, these people have the same sort of – not the same but – you know, they’re in a similar situation as I am, you accommodated them. Why aren’t you accommodating me? Because I’m pregnant?”

NASIR: UPS is not a guaranteed loss yet because, basically, the court said, “Okay, go down to the trial court again and find this out. This is what you need to focus on. Here’s the test that you need to solve.” The majority opinion was pretty adamant in basically ignoring some of the arguments from both the plaintiff and the defendant and from third-party people like the EEOC and how they suggested for this approach. The court just took the very simple – simplistic, in a way – approach of how you approach any disability, in a way, with some subtleties here and there. It’s interesting. We’ll see how it comes out, but UPS has already changed their policy well before this opinion came out. So, this only applies to this particular person because they’ve already rectified it.

MATT: Yeah, and I’m reading some of the descent, Justice Scalia. “If Boeing offered chauffeurs to injured directors, it would have to offer chauffeurs to pregnant mechanics.”

NASIR: Yeah, right. That’s making a joke, if you guys don’t know, this is typical Scalia for you.

MATT: Constitutional law humor.

NASIR: Yeah, but because an employer can come back – and this is what I think the majority opinion said – they can come back and say that there was some legitimate non-discriminatory reason. Going to that chauffeur thing, you know, seniority is a legitimate reason to treat employees differently because, look, you’ve been working here longer. You’re an executive. If you get injured, yeah, we’re going to send a chauffeur with a limo and all that.

MATT: You’re not saying that the employer has to be like a socialist.

NASIR: Yeah, everyone’s treated equal, exactly.

MATT: You know what, the thing I don’t get about this with UPS – obviously, they did the wrong thing but – if you’re going to choose any sort of class that could be discriminated against, I feel like pregnant women has to be one of the worst people you can try to…

NASIR: Yeah, you’re not going to get any sympathetic jurors on that.

MATT: Zero sympathy.

NASIR: But, at the same time, it’s understandable that – well, not from UPS’ perspective but let’s just put ourselves in a different shoe, in a small business and I know everyone thinks this way – when you have people in certain positions, you want to make sure that they’re going to be there for the long haul, that other things aren’t going to affect that. Pregnancy and women in the workplace, that’s talked about all the time. It’s an issue.

MATT: As an employer, I agree with you, but it’s not something that should surprise them if they have a woman, especially if she’s married, especially if she already has a kid and she’s like, “Oh, I’m going to go on maternity leave again.”

NASIR: Yeah.

MATT: Or, “I’m pregnant again.” It’s like, well, it’s not a shocker.

NASIR: Yeah, and we’ve talked about this in the past. Again, you know, I like to forget about the law for a second.

MATT: That’s all we do.

NASIR: That’s all we do. Just forget about the law. Everyone, take everything we said, forget it.

MATT: It’s only the first word of the podcast – “legally.”

NASIR: Legally, yeah, “law” is not the first word, it’s “legally.” Yeah, so forget about the law and just take the aspect of kind of a cultural perspective on how we treat these things and how the rest of the world treats these things. The reality is that, as a country, we do not grant much leave at all for men, women, you know, for family leave and so forth. It’s very minimal. Some other countries, they pay for leave and we’ve gone over that in general. I think this is where we’re going to head in as a country and it’s just going to require a paradigm shift a little bit.

MATT: Yeah, and we’ve definitely talked about that before. You know, it’s nothing new. There was one minor thing I saw in here, just reading through this still, the Supreme Court did have a little bit in favor of UPS, I guess you could say. You know, they said, “If an employer provides one or two workers with an accommodation, that doesn’t mean it has to provide a similar accommodation to pregnant workers.”

NASIR: That’s right.

MATT: It’s not a blanket sort of thing.

NASIR: Yeah.

MATT: And I think that cuts against that chauffeurs statement.

NASIR: And the plaintiffs were asking for that. They were asking for that blanket protection and that would have been probably a little too far. And so, the court probably took the most reasonable approach – cutting the baby, so to speak.

MATT: This isn’t Mardi Gras and you cut into the cake and a baby pops up.

NASIR: That’s a little morbid, by the way.

MATT: It’s not a real baby.

NASIR: With the pregnancy analogy. Oh, it’s not?

MATT: No.

NASIR: Oh, that’s good. All right. So, I think that’s it. Did we miss anything? What’s the take-home?

MATT: The take-home is definitely not accommodate any requests by someone who’s pregnant because that is not what the decision was. But the take-home is, if you’re letting enough people do one thing and not letting someone who’s pregnant do the same thing – accommodation – then maybe not do that. What a great take-home! I can’t wait to see that transcribed to see how that looks in text.

NASIR: Whatever. Just take it home. Whatever it is, take it. Okay. Well, thank you for joining us, everyone. Don’t forget to leave some positive reviews on iTunes.

MATT: Keep it sound and keep it smart.

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Legally Sound Smart Business

A business podcast with a legal twist

Legally Sound Smart Business is a podcast by Pasha Law PC covering different topics in business advice and news with a legal twist with attorneys Nasir Pasha and Matt Staub.
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