Top Ohio Pregnancy Discrimination Lawyer Answer: Does my employer have to accommodate my pregnancy related work restrictions? Can my boss make me lift more than my doctor says I can while I’m pregnant? Can I sue my employer for pregnancy discrimination?
Yesterday in Young v. United Parcel Service, the United States Supreme Court issued its decision on the issue of whether The Pregnancy Discrimination Act (“PDA”), which was added to Title VII of the Civil Rights Act of 1964 in 1978, required employers to accommodate temporary limitations or medical requirements caused by an employee’s pregnancy. This was the most anticipated legal decision change or clarification on the rights of pregnant workers in over 35 years.
Let’s step back for a second and look at the PDA. There are two parts to the PDA. The first part establishes that pregnancy bias is a form of discrimination based on gender or sex – because obviously only woman can get pregnant. What has been clear under this first part was that the PDA makes it illegal for employers to discriminate against pregnant women. So, employers could not refuse to hire or fire a female employee because she got pregnant.
Now, let’s turn to the second part, where the Young decision focused. Essentially, this second part provides that employers must treat pregnant employees the same as other workers who perform the same type of job. Specifically, this second part provides: “The Act’s second clause says that employers must treat “women affected by pregnancy . . . the same for all employment-related purposes . . . as other persons not so affected but similar in their ability or inability to work.” Up until yesterday, the question remained, did the PDA require employers to take affirmative steps to accommodate the needs of pregnant women in the workplace – such as honoring lifting restrictions; reduced hours on her feet; or even requirements for more frequent bathroom breaks – if medically required?
In this case, a lifting limitation was at issue. Young worked for United Parcel Service (better known as UPS) as a part time driver, which required her to be able to lift packages up to 70 pounds on her own, and team lift packages weighing up to 150 pounds. Young took a leave of absence for in vitro fertilization treatment (her third attempt). After she successfully became pregnant but before returning to work from leave, Young notified her supervisor of her doctor recommended limitation that she not lift anything over 20 pounds. However, when Young sought to return to her position with the limitations, UPS told Peggy that she could not because it would not provide the accommodation consistent with its policy of not providing accommodations for conditions caused outside of work.
Obviously, the employer, in this case, UPS and the employee, Peggy Young, had very different arguments regarding how this second part of the PDA should be applied by the courts.
On one hand, Young, and other interested parties, argued that the second part of the PDA required employers to provide the same accommodations to pregnant employees that it provides to employees with other disabilities that have a similar effect on the ability to perform the job. On the other hand, UPS took the position that the Pregnancy Discrimination Act should be interpreted to allow facially neutral policies; and that because its no accommodation for non-work related conditions (such as off-the-job injuries) did not consider gender, its policy should be found acceptable under the PDA. (As a side note, the Young’s complaint was filed before the Americans with Disabilities Act Amendments Act of 2008 (ADAA) was passed. Given how the ADAA has significantly broadened the definition of disability, I suspect that UPS’s accommodation policy may now likely be a violation of the ADAA. See here also.)
The trial court and the United States Fourth Circuit Court of Appeals agreed with UPS. As our employment discrimination attorneys blogged about when the Supreme Court accepted this pregnancy discrimination case for consideration, it was likely that the employer’s argument would not be accepted by the Supreme Court. And, it wasn’t. But neither was the employee’s argument. The Supreme Court rejected UPS’s argument as being a too narrow application of the statute. The Supreme Court rejected Young’s argument holding that such a reading would create a “most-favored-nation” approach of nearly total equality for pregnant women, and would alleviate the pregnant employee’s of any duty to prove that the bias or discrimination against her based on her pregnancy was intentional. Critically, by rejecting this argument, the Supreme Court expressly rebuked and refused to give any weight whatsoever to the guidelines written by the Equal Employment Opportunity Commission (“EEOC”) after the Court had decided to review this case.
As part of the majority 6-3 decision, the Supreme Court applied the same test used in other discrimination cases under Title VII, which comes from its 1973 decision in McDonnell Douglas Corp. v. Green. Under McDonnell Douglas, an employee must show that: (1) he or she is a member of a protected class; (2) he or she is qualified for the position; (3) he or she suffered an adverse employment action; and (4) either non-members of that employee’s class were treated more favorably than the employee, or the circumstances give rise to an inference of discrimination. If the employee can do that, the employer has the relatively simple burden of stating a legitimate non-discriminatory reason for it action. Once the employer has done that, the employee can show that the reason given by the employer is a lie, or what lawyers call pretext. If the employee can do that, the employee wins.
So with this framework in mind, her is the key part of the Supreme Court’s decision in Young:
In our view, the Act requires courts to consider the extent to which an employer’s policy treats pregnant workers less favorably than it treats nonpregnant workers similar in their ability or inability to work. And here—as in all cases in which an individual plaintiff seeks to show disparate treatment through indirect evidence—it requires courts to consider any legitimate, nondiscriminatory, nonpretextual justification for these differences in treatment. See McDonnell Douglas Corp. v. Green, 411 U. S. 792, 802 (1973). Ultimately the court must determine whether the nature of the employer’s policy and the way in which it burdens pregnant women shows that the employer has engaged in intentional discrimination…
In our view, an individual pregnant worker who seeks to show disparate treatment through indirect evidence may do so through application of the McDonnell Douglas framework. That framework requires a plaintiff to make out a prima facie case of discrimination. But it is “not intended to be an inflexible rule.” Furnco Constr. Corp. v. Waters, 438 U. S. 567, 575 (1978). Rather, an individual plaintiff may establish a prima facie case by “showing actions taken by the employer from which one can infer, if such actions remain unexplained, that it is more likely than not that such actions were based on a discriminatory criterion illegal under” Title VII. Id., at 576 (internal quotation marks omitted). The burden of making this showing is “not onerous.” Burdine, 450 U. S., at 253. In particular, making this showing is not as burdensome as succeeding on “an ultimate finding of fact as to” a discriminatory employment action. Furnco, supra, at 576. Neither does it require the plaintiff to show that those whom the employer favored and those whom the employer disfavored were similar in all but the protected ways….
Thus, a plaintiff alleging that the denial of an accommodation constituted disparate treatment under the Pregnancy Discrimination Act’s second clause may make out a prima facie case by showing, as in McDonnell Douglas, that she belongs to the protected class, that she sought accommodation, that the employer did not accommodate her, and that the employer did accommodate others “similar in their ability or inability to work.” The employer may then seek to justify its refusal to accommodate the plaintiff by relying on “legitimate, nondiscriminatory” reasons for denying her accommodation. 411 U. S., at 802. But, consistent with the Act’s basic objective, that reason normally cannot consist simply of a claim that it is more expensive or less convenient to add pregnant women to the category of those (“similar in their ability or inability to work”) whom the employer accommodates. After all, the employer in Gilbert could in all likelihood have made just such a claim.
If the employer offers an apparently “legitimate, nondiscriminatory” reason for its actions, the plaintiff may in turn show that the employer’s proffered reasons are in fact pretextual. We believe that the plaintiff may reach a jury on this issue by providing sufficient evidence that the employer’s policies impose a significant burden on pregnant workers, and that the employer’s “legitimate, nondiscriminatory” reasons are not sufficiently strong to justify the burden, but rather—when considered along with the burden imposed—give rise to an inference of intentional discrimination.
The plaintiff can create a genuine issue of material fact as to whether a significant burden exists by providing evidence that the employer accommodates a large percentage of nonpregnant workers while failing to accommodate a large percentage of pregnant workers. Here, for example, if the facts are as Young says they are, she can show that UPS accommodates most nonpregnant employees with lifting limitations while categorically failing to accommodate pregnant employees with lifting limitations. Young might also add that the fact that UPS has multiple policies that accommodate nonpregnant employees with lifting restrictions suggests that its reasons for failing to accommodate pregnant employees with lifting restrictions are not sufficiently strong—to the point that a jury could find that its reasons for failing to accommodate pregnant employees give rise to an inference of intentional discrimination.
So what does this mean and who wins here? Well, let’s start with the obvious, two courts had dismissed Young’s claims and now she can proceed on those claims. So she wins. Although the Court did not take as broad an approach as Young had hoped, this is a win for pregnant workers. Pregnant workers can bring claims based on the disparate impact (that policies impact pregnant workers worse than other workers) and the Supreme Court reaffirmed that employees’ initial burden is “not onerous.” This means that the case should be easier to get to a jury if there is any evidence to support the claim – which most brought with the assistance of qualified and experienced employment discrimination lawyers, will. When cases are easier to get to a jury, and both sides know it, cases will usually settle earlier in the process and for more than when there is doubt that the case will reach a jury.
But, the biggest win for employees may be in what the Supreme Court raised, but did not commit to. The Supreme Court will not address issues not squarely before it and will not offer advisory opinions. But, when the Supreme Court raises points on its own, employers, employees and employment law attorneys should sit up and take notice. In my opinion, the following passage may have the greatest impact on future cases:
We note that statutory changes made after the time of Young’s pregnancy may limit the future significance of our interpretation of the Act. In 2008, Congress expanded the definition of “disability” under the ADA to make clear that “physical or mental impairment[s] that substantially limi[t]” an individual’s ability to lift, stand, or bend are ADA-covered disabilities. ADA Amendments Act of 2008, 122 Stat. 3555, codified at 42 U. S. C. §§12102(1)–(2). As interpreted by the EEOC, the new statutory definition requires employers to accommodate employees whose temporary lifting restrictions originate off the job. See 29 CFR pt. 1630, App., §1630.2(j)(1)(ix). We express no view on these statutory and regulatory changes.
Why is this significant? For two possible reasons: First, it opens the door for pregnancy related conditions to be considered a “physical impairment” under the ADAA. That means a pregant worker may be able to pursue claims under both the PDA and the ADAA. Because of the broad definition of disability under the ADAA, the claim is easier and the focus in real practice is on whether the employer engaged in an interactive process to determine if it could provide a reasonable accommodation without the accommodation being an undue burden. Second, even if an employee cannot get to the ADAA directly, Young opens the door to get there tangentially. Under Young, pregant workers can point to how the employer “did accommodate others ‘similar in their ability or inability to work.’” Because most employers will be accommodating employees with a broad definition of disability under the ADAA, such evidence will come into play to prove pregnancy discrimination.
So, although the Supreme Court did not make it an automatic requirement that pregnant workers get the same accommodations as other disabled employees, it came pretty damn ass close; and hinted that under the ADAA, it might do so.
If you are facing discrimination or harassment simply because you are pregnant, protect your legal rights — call the right attorney. Under federal and Ohio employment laws, employers cannot harass, fire, wrongfully terminate, discriminate against, demote, or wrongfully discipline a female employee just because she got pregnant. When you call the right attorney to schedule a free and confidential initial consultation at 866-797-6040, you will meet with an attorney from the Spitz law firm to discuss wrongful discrimination claims and help you determine the best way to pursue your gender/sex discrimination claims. Our pregnancy discrimination lawyers know your rights and will fight to protect them.
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