Monday, April 6, 2015

Supreme Court takes Issue with EEOC Pregnancy Guidelines; Issues its own “Guidance” for Employers on Workplace Pregnancy Accommodations

April 2015
By: James B. Sherman, Esq
The U.S. Supreme Court has issued its highly anticipated decision on pregnancy discrimination in the workplace.  The case, Young v. UPS, involved a worker’s claim that her employer unlawfully refused to accommodate her pregnancy-related lifting restrictions while providing light-duty work to other employees who had similar restrictions, unrelated to pregnancy.  Young’s claims were bolstered in part by the Equal Employment Opportunity Commission’s (EEOC) controversial new guidelines on pregnancy.  Those guidelines, issued just last year while Young’s appeal was still pending, stated among other things that employers must offer light-duty work normally reserved solely for employees on workers compensation, as an accommodation to pregnant workers.  By contrast UPS argued successfully in the court below, that employers have the right to create light-duty work for limited business purposes without having to offer it as an accommodation to pregnant workers.  The Supreme Court disagreed with both sides as well as with the EEOC. Instead, the Court adopted a middle-of-the-road approach that resulted in reinstating Young’s claims but leaving it to the lower court to determine their merit.  In doing so the Court set new ground rules that balance the rights of pregnant employees with those of employers when it comes to mandating accommodations.

Statutory Background:

The extent to which employers must accommodate pregnant employees involves the intersection of two pertinent federal laws – the Pregnancy Discrimination Act of 1978 (PDA) and the Americans with Disabilities Act (ADA).  The PDA has for nearly 40 years required of employers, 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 . . . .”  A literal reading of the PDA supports Young’s argument (and the EEOC’s position taken in its new pregnancy guidelines) that pregnant employees are entitled to any accommodations afforded to any non-pregnant workers with similar restrictions.  

The ADA is not readily susceptible to such an interpretation.  In fact, the ADA did not even apply to most pregnant individuals until it was amended in 2008.  Those amendments greatly expanded its coverage to include many pregnant employees so that the ADA now requires employers to reasonably accommodate limitations due to pregnancy, the same as any other disability.  However, the EEOC has for many years stated that employers do not violate the ADA by reserving light-duty work solely for employees with work-related injuries or illnesses.  EEOC guidelines acknowledge that employers have a legitimate business reason for limiting light-duty work as a means of mitigating their workers compensation exposure.  Accordingly, employers have never had to create light-duty work reserved for workers compensation, as an accommodation for disabled employees. 

As a result of these conflicting interpretations of the PDA and ADA, the EEOC’s new pregnancy guidelines essentially gave preferential treatment to pregnant workers over disabled employees. 

EEOC Guidelines on Pregnancy Deemed Unworthy of Deference:

The Court criticized the EEOC’s interpretation of the PDA, finding the law does not support the sort of preferential treatment of pregnant workers advocated in its pregnancy guidelines.  In reaching this decision, the Court took the EEOC to task in how it came to its position.  Recognizing the conflict between positions the federal government has previously taken versus the EEOC’s new position of preferential treatment for pregnant employees, the Court stated that the EEOC’s new guidelines on pregnancy were “inconsistent with positions for which the Government has long advocated…” As a result, the EEOC has acknowledged that in view of Young v. UPS it must revise its short-lived guidance on pregnancy in the workplace.

The Court’s “Guidance” on Pregnancy and Light-Duty:

Under the newly articulated analysis in Young v. UPS, the Supreme Court stated that where there is evidence showing that an employer accommodates a large percentage of non-pregnant workers but refuses to accommodate most pregnant workers, a jury could decide that the employer’s stated reasons for doing so, were merely a pretext for intentional discrimination.  Consequently, this decision can be interpreted to say that if an employer does not want to have to create light-duty work as an accommodation for pregnant employees, it cannot do so for a significant percentage of its other employees. 

Based on this decision, employers who do want to provide light-duty work as an accommodation only in limited circumstances will need to meet two separate criteria: (1) they must have a solid business justification for limiting the work to a select group or group of employees; and (2) the employees who are given access to light-duty work cannot comprise too significant a percentage of the workforce relative to pregnant workers.  In other words, providing access to light-duty work to too many employees will open the door for pregnant workers (and possibly disabled and other employees) to use it.

Deciphering the Court’s Decision:

In view of the Court’s decision in Young v. UPS, employers should determine whether their existing policies and/or practices on light-duty work could require that they create such work as an accommodation for pregnant or other employees.  Employers are always free to go above and beyond what the law requires to accommodate employees, and certainly many employers take considerable measures on behalf of pregnant workers.  However, many employers currently limit light-duty work solely for employees on workers compensation or other very limited circumstances and do not wish to be compelled by law to create such work as an accommodation for pregnant, disabled, or other employees.   

A well-crafted policy on light-duty work is essential to satisfy both factors articulated by the Court in Young v. UPS; i.e. making the necessary business case for limiting access to such work; and assuring that only a small percentage of employees are granted light-duty work.  A solid policy, if uniformly observed in practice, may avoid the foreseeable problems UPS is likely to face now that its case is remanded back to the trial court.  Reading into the Court’s analysis a jury may now find that UPS opened the door to light-duty work for too many non-pregnant individuals, to justify its refusal to provide it as an accommodation to pregnant employees as well. 

For more information on the implications of the Supreme Court’s new decision, or help with auditing existing policies or drafting an appropriately-limited light-duty policy in view of this decision, contact Attorney James Sherman, at Wessels Sherman by phone: (952) 746-1700 or email: jasherman@wesselssherman.com