A potential change is on the horizon for United States pregnancy discrimination law. In the past decade, pregnancy discrimination charges have increased by 35 percent. See Pregnancy Discrimination Charges, US Equal Opportunity Comm’n.

Recently, the EEOC’s General Counsel stated that pregnancy discrimination was one the “areas” in which employers “need[ed] to remind themselves of the law, and [that] they need to comply with the law.” See 5 Questions for EEOC General Counsel David Lopez.

Young v. UPS

On December 3, 2014, the US Supreme Court will hear arguments in Peggy Young v. United Parcel Service, Inc. (“UPS”), an important case that will clarify—and potentially dramatically expand—an employer’s accommodation obligations under the Pregnancy Discrimination Act (“PDA”). See 134 S. Ct. 2898 (2014).

The PDA offers protections for women in the workplace affected by pregnancy, children, or related medical conditions. Young v. United Parcel Serv., Inc., 707 F.3d 437,447 (4th Cir. 2013).

At present, employers are not required to treat a pregnant employee more favorably than the employer would treat a non-pregnant employee. See id.

The Supreme Court’s decision in Young could change that.

Peggy Young was a part-time driver for UPS. Although all drivers were required to be able to lift items weighing up to 70 pounds, Young’s duties generally included carrying lighter letters and packages. After Young became pregnant, she asked for a brief leave of absence. Shortly thereafter, Young submitted a doctor’s note with a recommendation that she not lift more than 20 pounds and asked for an accommodation to work light duty.

UPS refused the request and did not allow her to return to work reasoning that lifting more than 20 pounds was an essential function of her job. UPS provided light duty accommodations to employees who suffered on-the-job injuries and to employees who had a qualifying disability under the ADA. Young argued that the PDA requires employers to provide pregnant employees light duty work if it provides similar work to other employees in other circumstances.

Lower courts sided with UPS

Both the US District Court for the District of Maryland and the Fourth Circuit held that the company’s policy was lawful under the PDA because “where a policy treats pregnant workers and nonpregnant workers alike, the employer has complied with the PDA.” Young, 707 F.3d at 449.

The Supreme Court is now faced with the question of whether the PDA requires an employer to provide the same work accommodations to an employee with pregnancy-related work limitations as to employees with similar, but non-pregnancy related, work limitations.

EEOC guidance on the PDA

Notably, two weeks after the Supreme Court granted certiorari in the Young case, the EEOC issued new pregnancy discrimination guidance for the first time in thirty years. See Enforcement Guidance: Pregnancy Discrimination and Related Issue, US Equal Opportunity Comm’n.

Not surprisingly, the July 2014 EEOC Guidance adopts the position taken by the plaintiff in Young. Among other provisions, the Guidance sets forth the EEOC’s position that employers may be required to provide reasonable accommodations to pregnant employees, employees who are planning to become pregnant, and employees who have medical conditions related to pregnancy.

Put differently, if an employer provides an accommodation to an employee with a disability, a pregnant employee who has similar limitations would be entitled to the same accommodation, regardless of whether the pregnant employee is disabled for ADA purposes.

The Guidance expressly states that the EEOC “rejects the position that the PDA does not require an employer to provide light duty for a pregnant worker if the employer has a policy or practice limiting light duty to workers injured on the job and/or to employees with disabilities under the ADA.” See id.

Awaiting a US  Supreme Court decision in Young

The Supreme Court’s decision in Young, and whether the Court adopts any of the reasoning from the EEOC’s Guidance, could have far-reaching implications for both employers, essentially requiring employers to treat pregnancy and related conditions as disabilities. The Court is likely to issue a decision in the spring of 2015.

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