Supreme Court "delivers" new life to pregnancy discrimination claims in Young v. United Parcel Service, Inc.

• Author: Dunlap, Nicole Bermel
• Position: Labor and Employment Law

It has been illegal for employers to discriminate against pregnant women in the workplace since 1978 when Congress enacted the Pregnancy Discrimination Act (PDA), 42 U.S.C. [section]2000e(k). Yet many employers and employees remain confused about precisely what the PDA requires. Last year, employees filed some 3,400 charges with the Equal Employment Opportunity Commission (EEOC) alleging pregnancy discrimination. (1) The main complaint in recent times has been that employers have refused to accommodate pregnancies.

One reason for the confusion appears to be changing expectations of pregnant and soon-to-be pregnant workers. When the PDA was first enacted, employers sought to comply with the law by implementing policies designed to accommodate pregnant employees, for example, by reassigning them to less strenuous jobs or prohibiting them from business travel. Pregnant workers successfully challenged those policies in court on grounds that they kept pregnant workers from making their own choices about the level of risk imposed upon themselves and their fetuses. Now, pregnant and soon-to-be pregnant workers' expectations seem to have shifted, and women are challenging their employer's failure to accommodate pregnancy in the workforce.

Recently, the U.S. Supreme Court in Young v. United Parcel Service, Inc., 575 U.S. __, 135 S. Ct. 1338 (2015), breathed new life into pregnancy discrimination claims by holding that where other employees' work-restrictions may be accommodated, employers may be required to similarly accommodate pregnant employees. Likewise, recent changes to Florida law have created increased protections to pregnant employees under the Florida Civil Rights Act.

The History of the Pregnancy Discrimination Act

Congress originally enacted the PDA in response to General Electric Co. v. Gilbert, 429 U.S. 125 (1976), when the Supreme Court held that a disability plan that covered sickness and accidents, but that excluded pregnancy-related absences, was not discriminatory on the basis of sex even though pregnancy was a characteristic confined to women. (2) Due to general discontent with General Electric, two years later in 1978, Congress amended Title VII of the Civil Rights Act of 1964 to clarify that discrimination because of, or on the basis of, pregnancy, childbirth, or related medical conditions constitutes unlawful sex discrimination under Title VII. (3)

In the years following the PDA's enactment, courts repeatedly struck down employer policies aimed at protecting pregnant employees and their fetuses, even in cases in which pregnant workers found themselves exposed to truly dangerous working conditions.

For example, the Supreme Court addressed fetal protection policies in UAW v. Johnson Controls, Inc., 499 U.S. 187 (1991), when a pregnant employee challenged a policy that excluded fertile women from working in certain jobs where they were exposed to unsafe levels of lead. (4) The employer had implemented the policy after eight pregnant employees developed blood levels exceeding the Occupational Safety and Health Administration's (OSHA) safe lead exposure limits for workers planning to have a family. Given that history, the employer argued that there was a business necessity in eliminating the risk of fetal harm and that infertility was a bona fide occupational qualification. Rejecting these arguments, the Court struck down the policy as violating the PDA. (5)

Young v. United Parcel Service, Inc.

On March 25, 2015, the Supreme Court rendered its decision in Young v. United Parcel Service, Inc. Here the Court addressed the second clause of the PDA, which provides that "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" (6) The Court posited several essential questions: "Does this clause mean that courts must compare workers only in respect to the work limitations that they suffer? Does it mean that courts must ignore all other similarities or differences between pregnant and nonpregnant workers? Or does it mean that courts, when deciding who the relevant 'other persons' are, may consider other similarities and differences as well? If so, which ones?" (7) The justices' answers to these questions split along nontraditional lines. Justice Breyer delivered the majority opinion in which Chief Justice Roberts and Justices Ginsburg, Sotomayor, and Kagan joined. (8) Justice Alito filed a concurring opinion and Justice Scalia filed a dissenting opinion in which Justices Kennedy and Thomas joined. Justice Kennedy also filed a separate dissenting opinion.

* The Facts: Young Sought an Accommodation for a Lifting Restriction Imposed During Her Pregnancy--Young was a United Parcel Service (UPS) driver whose position required that she be able to lift parcels weighing up to 70 pounds, although her job generally required her to lift lighter packages. (9) When she became pregnant, her doctor imposed a pregnancy-related, 20-pound lifting restriction. (10) As she could not satisfy UPS' 70-pound lifting requirement, UPS placed Young on an unpaid leave of absence until after the birth of her child. UPS refused Young's request for light duty or an alternative work assignment. (11)

Young sued UPS alleging disparate treatment under the PDA because UPS refused to "accommodate" her by providing either light duty or alternative work during her pregnancy, though UPS accommodated some nonpregnant employees by providing them with light duty or temporary work assignments. (12) Specifically, Young contended that UPS provided 1) temporary, alternative work to employees covered by a collective bargaining agreement who were unable to perform their normal job assignment after on-the-job injuries; 2) lifting jobs to drivers who lost their Department of Transportation (DOT) certification due to a failed medical exam, lost driver's license, or involvement in a motor vehicle accident; and 3) light duty as an accommodation to employees disabled, but unable to perform...