It is fair to say that some employers are (or should be) still looking for guidance about how to treat pregnant employees. It would also be fair to say that Supreme Court decisions on this big issue should provide some guidance for folks in the trenches. The third true thing is that sometimes Supreme Court arguments seem to come from another planet.
Question: How many Justices currently serving on the Supreme Court have been pregnant?
Answer: One — Ruth Bader Ginsberg (aka, the Notorious RBG), of course.
This is not to say that men or women who have not borne children cannot be powerful advocates for them and for families in general or that they do not fully appreciate the complexities of law and family life. It would be ridiculous to suggest otherwise.
But most of the women and men who make up the Court have never personally had to cope with pregnancy-related lifting restrictions. There is no evidence either way about back strain arising from lawn mowing or careless dancing.
This is how we get to Peggy Young.
Peggy Young was a driver for UPS when she became pregnant in 2006. Her doctors told her that she should not lift packages weighing more than twenty pounds for the first twenty weeks of her pregnancy; after that, she should not lift more than ten pounds. Her job description required that she be able to lift seventy pounds, although she generally delivered much lighter packages and letters. She requested an accommodation. When it was denied, she was put on an unpaid leave of absence and lost her health insurance. She ultimately returned to work in April 2007.
Then she sued, alleging that workers with similar lifting restrictions that were caused by both work and non-work injuries were routinely assigned to light-duty jobs. In fact, the only cause that resulted in a denial of accommodation appears to have been pregnancy.
UPS’s policy at the time did permit reassignment to light-duty work for three reasons:
- On-the job injury,
- Disability, as defined by the Americans With Disabilities Act, (pregnancy is not treated as a disabling condition under the federal ADA) or
- Loss of the required federal driver’s certificate because the driver failed a medical exam, lost his or her driver’s license, or had been involved in a car or truck accident.
All parties agree that pregnancy does not fall into any of those three categories.
The PDA clarified that employment discrimination on the basis of sex, which is forbidden under Title VII of the Civil Rights Act, also includes discrimination based on “pregnancy, childbirth or related medical conditions.” It is clear, under federal law, that an employer may not fire a woman, or cut her pay, or deny her health benefits because she is pregnant.
Much of yesterday’s oral argument focused on the meaning of the law’s infamous “second clause,” which requires that employers to treat pregnant employees the same as “other persons not so affected but similar in their ability or inability to work.” Confusion reigns because these two clauses can mean very different things.
The legal question in this case is:
- does the law require equal treatment for all employees who are able to do the job, in this case, lift 70 pounds, or
- does the law require equal treatment for all employees who are temporarily unable to do the job for any reason, including on-the-job injury, pregnancy, or temporary back strain caused by an unwise middle-aged decision to play rugby.
Why this Matters
It matters to Peggy Young, of course. Her case was never heard at trial but was dispatched on summary judgment.
It matters to a very large number of working women, too. In 2010, approximately 47 percent of the workforce was female. By 2018, that is expected to rise to 51 percent. According to employment discrimination attorney, Katherine Kimpel, three-quarters of the women currently entering the workforce will become pregnant at least once while employed, and many will work throughout their pregnancies. Some will experience complications or physical effects that cause them to ask their employers for reasonable accommodations.
UPS has since changed its policy to permit light-duty work for pregnant employees, but the United States Postal Service, which employed more than 491,000 people in 2012, has a similar policy. Rough math puts that at 184,000 women who may become pregnant one or more times.
It matters to small businesses that need to know whether a policy that is “pregnancy-blind,” like UPS’s, can be discriminatory in practice and end up costing them big dollars.
We may not know the answer until the Supreme Court’s term ends in June, so what should employers do in the meantime?
How to Accommodate Pregnant Employees
At the very least, all employers should adopt a written policy that sets out standards for temporary light-duty reassignment and other accommodation of pregnant employees. Have your business lawyer review this. The interest in Young v. United Parcel Service, Inc. may be expected to spark litigation.
Federal anti-discrimination law sets a baseline to which states may add additional protections. Many states still use only the federal standard. In those states, the policy should meet the standard defined by the relevant Circuit Court’s interpretation of federal law. This may or may not be a pregnancy-blind standard like that previously applied by UPS, which is why this is not a do-it-yourself project. Keep in mind that you may have to change this policy after the Court renders its decision. Quick amendment to demonstrate good-faith efforts to comply with the law can keep damage awards down.
A number of states, including Michigan, Connecticut, California and Maryland have adopted laws requiring parity in accommodations for pregnant workers. A similar law failed in the New York State legislature last year, but New York City requires reasonable accommodation, as long as it does not cause undue hardship to the employer. Texas law requiring accommodation of pregnant workers applies only to county or municipal employers.
Under California’s Fair Housing and Employment Act, employers are required to provide reasonable accommodation to a pregnant employee when requested, with the advice of her health care provider, related to her pregnancy, childbirth, or related medical condition.
Under California regulations, as amended through the end of 2012:
- Hardship to the employer is not a defense, given the limited duration and scope of the accommodations.
- An employer may accommodate a pregnant employee by transferring her to a less strenuous or hazardous position, but is not required to create a job for her if it would do so otherwise, would have to discharge another employee, or if the job creation or transfer would cause the employer to violate a collective bargaining agreement.
- The employer must create a light-duty job if it has done so for occupationally-injured employees.
- Other accommodations may include, among other changes, modifying work schedules, providing stools or chairs, or allowing more frequent restroom breaks.
- Employers must further give employees advance written notice of their rights under the statute in three ways. These include posting in a conspicuous place (electronic posting is acceptable), giving the notice to an employee who alerts the employer to her pregnancy, and publishing the notice in the next edition of the employee handbook, or distributing it annually (electronic publication is acceptable). The template notices in the regulations also include more information about pregnancy disability leave, reasonable accommodations, and employers’ obligations to their employee.
Why Small Employers Should Accommodate Pregnant Employees Even if Not Required
This is not just a story of minimum legal compliance. Small employers are often reluctant to offer benefits beyond those legally required because of a shared perception that they are not cost effective. A published recently by the International Labour Association, an agency of the United Nations, suggests that small businesses that offer maternity benefits beyond the legal minimum have reported increased employee happiness, lower turnover and greater productivity. The perception, or misperception, may simply be a byproduct of the fact that smaller businesses have less ability to collect reliable data on these benefits.
If it proves to be good business from an economic point of view, compliance with the law about pregnancy accommodations should not cause employers any undue pain.
The Pregnancy Discrimination Act, which is at the heart of this dispute, was enacted at a time when legislative focus was on overtly discriminatory actions, such as firing women for being pregnant. It seems as long ago as the world of Madmen.
Much of later legal thinking has dealt with protecting employees from actions and policies which were neutral on their face, but had a disproportionate effect on one group of employees or another. These are the so-called "disparate impact" cases. The PDA has become somewhat antique because it does not seem to fully contemplate this aspect of discriminatory behavior. Congressional action to fix this problem or to expand the definition of disability in the Americans with Disabilities Act to include pregnancy-related issues seems unlikely in the near term. So lawyers and Supreme Court Justices end up having slightly tortured conversations about the minute distinctions in meaning between two clauses of the same sentence in a very small piece of legislation.
Once again, it appears that the states are the laboratories of invention and the source of laws that facilitate business.