What Accommodations Must Be Made for a Pregnant Employee?
A Note From The Editor
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Entrepreneurs whose businesses entail manual labor or even just stamina would be wise to pay attention to the U.S. Supreme Court's March 25 decision in Young v. United Parcel Service, Inc. regarding work-related accommodations for pregnant employees.
Title VII of the Civil Rights Act of 1964, as amended by the Pregnancy Discrimination Act of 1978, has long clarified that unlawful sex discrimination covers pregnancy. It was the latter law under which Patricia Young, a part-time driver, sued UPS.
At the time, UPS drivers like Young were required to lift parcels weighing up to 70 pounds. After Young became pregnant she was placed on a 20-pound lifting restriction. Like many companies, however, UPS had a light duty program, but only for employees in three categories: 1) those with limitations resulting from work-related injuries; 2) those covered under the Americans with Disabilities Act (ADA); and 3) those who had lost their Department of Transportation certification.
Young did not fit into any of these categories. She applied for light duty anyway and was rejected, then told she could not return to work until after her pregnancy.
With government support Young sued, arguing pregnancy discrimination. UPS argued back that its policy lawfully made distinctions based on workers’ compensation status.
The Court took a third position. It rejected the government’s argument that light duty jobs, if offered, must be offered to pregnant employees with similar limitations. It also rejected the UPS defense that, because its distinction was based solely on workers’ compensation status, pregnancy discrimination had not occurred.
Instead, the Court adopted a three-step approach:
- An employee generally can challenge a light duty program that excludes pregnant employees.
- The employer may seek to justify its exclusion based on a “legitimate, nondiscriminatory reason.”
- The employee can challenge the employer's reason and reach a jury to consider her claim if she provides sufficient evidence that the company's policy imposes a significant impact on pregnant workers and its reasons are not sufficiently strong to justify the burden.
In effect the Court established a balancing test, though it offered no hints as to what a "legitimate employer interest" might be. It did say that any employer's claim that adding pregnant workers is less convenient or more expensive would not hold.
So, what does this all mean for entrepreneurs?
- If you have a light duty program that excludes pregnant employees, assume it may be challenged, and if so, that the case likely will end up before a jury. The odds of winning are not good.
- If you don’t have a light duty program, you don’t have to create one. That is, you do not have to give pregnancy a preference. Indeed, an employer that has a light duty program could conclude that, based on the Court’s decision, the program may not serve its intended purpose, and constrict or abolish it.
- Even if an employer does not offer light duty, the company cannot treat employees with disabilities associated with pregnancy or childbirth less favorably than those with other disabilities that similarly hinder the ability to work. Entrepreneurs should also note that the definition of disability was expanded significantly under the amended ADA so that even temporary conditions may constitute a disability if they severely impact a major life activity. Therefore, most medical limitations associated with pregnancy or childbirth likely will be disabilities that must be accommodated. This does not necessarily mean light duty. An employer generally does not have to eliminate essential functions, only accommodate to a reasonable extent how they are achieved.
- Employers should have a reasonable accommodation policy that makes clear their coverage of physical and mental conditions includes those associated with pregnancy or childbirth. In some states and local jurisdictions, such as New Jersey and New York City, employers may have to accommodate pregnant employees even if they are not disabled. Employers in those jurisdictions will need to make that accommodation clear as well.
Finally, and perhaps most important, supervisors and those above them should receive training on pregnancy discrimination, covering such issues as:
- No applicant or employee should ever be asked if she is pregnant or intends to get pregnant.
- Employers cannot consider pregnancy in decision making, including decisions based on stereotypic assumptions or paternalistic impulses.
- Employers cannot engage in or tolerate pregnancy-related harassment (belly rubbing, “jokes” about conception, etc.).
- Employers must ensure that pregnant employees with medical limitations are accommodated to the same extent as nonpregnant employees with comparable medical limitations
- Supervisors should not decide what accommodation is or is not appropriate. Rather, they should report to HR any time a pregnant employee requests an accommodation, even if she does not use the legal “buzz words.”
Training on these issues will do more than help keep an entrepreneur out of court; it will foster a culture in which pregnant women know they are valued so that they can contribute their best to the organization’s mission.