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Employers Must Re-Examine Accommodation Policies for Employees

There has been a flurry of activity recently in the area of workplace accommodations, both regarding individuals who suffer from a disability under the Americans with Disabilities Act (“ADA”) as well as individuals who are pregnant.  In June 2014, the Equal Employment Opportunity Commission (“EEOC”) issued a guidance detailing its view of disparate treatment under the Pregnancy Discrimination Act.  In its 2014 guidance, the EEOC stated that an employer who provides an accommodation to an employee on account of an illness, injury, or condition that would qualify as a disability under the ADA, must also provide the same requested accommodation to a pregnant worker.  Simply stated, employers cannot deny an accommodation to a pregnant employee while permitting the same accommodation to a non-pregnant disabled worker.

The EEOC guidance puts employers on alert that it is going to give very close scrutiny to claims in which pregnant employees allege a failure to accommodate and pregnancy discrimination. 

The United States Supreme Court handed down a decision on March 25, 2015, titled Young v. United Parcel Service, Inc., 135 S.Ct. 1338 (2015), that seeks to clarify the issue of exactly which accommodations an employer must provide to pregnant women when it provides accommodations to employees who are not pregnant but are disabled. 

Peggy Young was a part-time driver for UPS.  When she became pregnant, her physician advised her not to lift more than 20 lbs. during the first 20 weeks of her pregnancy or more than 10 lbs. thereafter.  UPS, however, required that its drivers be able to lift up to 70 lbs.  UPS informed Ms. Young that she could not work while under the lifting restriction.  Ms. Young therefore stayed home without pay during most of her pregnancy and eventually lost her employee medical coverage.  Ms. Young filed a federal lawsuit against UPS, alleging disparate treatment.  After UPS moved for summary judgment, Ms. Young argued that UPS accommodated workers who were injured on the job, had disabilities covered by the ADA, or had lost their Department of Transportation (“DOT”) certifications.  Ms. Young argued that UPS discriminated against pregnant employees because it had a light-duty-for-injury policy for other employees but no light-duty policy for pregnant workers. 

UPS argued that it did not discriminate against Ms. Young because she did not fall within the on the job injury, ADA or DOT categories and it had treated her the same as all persons outside these categories. 

The Federal District Court granted summary judgment, concluding that Ms. Young could not make out a prima facie case of discrimination under the framework established by McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).  The District Court held that those to whom Ms. Young compared herself (on the job injured, ADA, and DOT) were too different to qualify as similarly situated comparators.  The 4th Circuit Court of Appeals affirmed the decision of the District Court.

The United States Supreme Court vacated and held that a pregnant worker who seeks to show disparate treatment may do so through the McDonnell Douglas framework by showing: (1) that she belongs to a protected class; (2) that she sought an accommodation; (3) that the employer did not accommodate her; and (4) that the employer did accommodate others “similar in their ability to work.”  The burden then shifts to the employer to show a legitimate, non-discriminatory reason for denying the accommodation and if the employer is successful in this regard, the employee must then demonstrate pretext.

A plaintiff may reach a jury on a pregnancy discrimination claim by showing that the employer's policies impose a significant burden on pregnant workers and that the employer's legitimate, non-discriminatory reasons are not strong enough to justify the burden and therefore give rise to an inference of intentional discrimination.  For example, a plaintiff can show that the employer accommodated a large percentage of non-pregnant employees while failing to accommodate a large percentage of pregnant workers.  In other words, pregnant employees can point to individuals outside their protected class who were provided with accommodations.  The Court held that this approach is consistent with the longstanding rule that a plaintiff can use circumstantial proof to rebut an employer's claim of legitimate, non-discriminatory reasons. 

While the Court did not specify what would constitute a “large percentage” when a plaintiff is attempting to show pretext, employers need to ensure that their policies on these issues are applied uniformly.  For example, if an employer provides a non-pregnant female worker with an accommodation on account of a back injury (either sustained on or off the job), must it also provide the same requested accommodation to a pregnant worker suffering from back pain related to her pregnancy?  Probably so, but only if the percentage of non-pregnant workers receiving accommodation is large enough  to support the assertion that the employer’s rationale for denying accommodation to pregnant workers is a mere pretext.  Employers must be cautious when providing for these accommodations and also when creating leave policies. 

In Massachusetts, if an employer provides paid leaves of absence to non-pregnant employees, then it must also provide the same accommodation to pregnant employees or risk a discrimination claim.  The Young decision will now require employers to examine their leave and accommodation policies when applied to both employees with disabilities and pregnant workers requesting the same.  The ADA may also provide protection for those pregnant employees suffering from a disability as defined by the ADA, and employers must be cognizant of this statute as well when dealing with requests for accommodations and leave by pregnant employees. 

If you have any questions about the Young decision, how it may impact your company, or have any questions about your current policies for employees, please do not hesitate to contact us.