The Dangers of Misunderstanding “Pregnancy Accommodation”

Miller & Martin PLLC Alerts | April 09, 2018

 by Stacie Caraway

In the wake of the 2015 U.S. Supreme Court decision, Young v. UPS, many employers have gotten “way too excited” and have “way oversimplified” their duty to accommodate pregnant employees (or not!).

By way of reminder, in Young, the Supreme Court disagreed with the EEOC’s interpretation of the federal Pregnancy Discrimination Act (PDA). The EEOC had argued that the PDA required employers to “accommodate” pregnant workers similar to the duty created under the federal Americans with Disabilities Act (ADA) for both applicants and employees with disabilities. The Supreme Court instead held that all the PDA requires is that pregnant employees not be treated any worse than “other employees who are similarly situated (i.e., temporarily restricted) in their ability to work.”

What many employers (and their attorneys) thus took away from this decision was that virtually no accommodations were required for pregnant employees – unless they were offered to others – such as in the situation presented in the Young case where UPS was offering temporary light duty work assignments to those injured on the job but not to pregnant employees. So, the conclusion was “if we simply don’t offer light duty, etc. to anyone, we can’t get into trouble for not offering it to pregnant workers.”

A recent federal court lawsuit out of the Western District of Tennessee illustrates the error in this type of reasoning. It also serves as a reminder to all employers that there are two possible causes of action under the PDA – a claim for disparate treatment and a claim for disparate impact. The Young decision was a disparate treatment case. Disparate treatment requires a showing of intentional discrimination. Disparate impact does not require this showing.

The Western District case, Adduci v. Federal Express Corp., was filed in federal court asserting both types of PDA claims. As in the Young decision, the disparate treatment claim in the Adduci case was dismissed. However, the disparate impact claim asserted in the Adduci case was not.

Both claims were based on FedEx’s uniformly-applied policy of making part-time employees who were placed on non-work-related-medical leave categorically ineligible to return to work on temporary reassignments – basically saying only those employees who were injured on the job could receive temporary reassignments, similar to the UPS policy which was challenged in the Young case.

Like many employers who may have only given cursory consideration to the Young case, only taking a mental note that UPS “won” because they were not deemed to have intentionally discriminated against pregnant workers, FedEx apparently overlooked the “extra parts” of the Young decision. In these, even though Ms. Young only asserted a disparate treatment claim, the Court (as it is inclined to do in most decisions) “went on” to explain how a disparate impact claim could exist at UPS and at other employers if their uniformly-applied light duty, attendance, vacation and other policies have an unintended disparate impact or adverse effect on pregnant employees.

This is in fact what Ms. Adduci alleged had happened regarding the uniformly-applied FedEx policy of making part-time employees who were placed on non-work-related-medical leave categorically ineligible to return to work on temporary reassignments. She alleged that the unintended result of this policy was that pregnant employees were being adversely affected by it more so than non-pregnant workers such that it constituted a violation of the PDA by virtue of having an (albeit unintentional) disparate impact on them.

How NOT to Make this Mistake

The Young decision effectively places a burden on all employers to track the effects of your policies on known pregnant employees (ideally under attorney direction as you should any other type of self-audit in order to be able to assert an attorney-client privilege regarding the results of such an audit if they are negative).

For instance, if you have an attendance policy which provides that once any employee receives “10 attendance points” they will be terminated, you should be tracking how many pregnant vs. non-pregnant employees this policy results in the termination of each year. The same is true regarding light duty. If you only provide light duty to those injured on the job (which, as a side note, is still going to be an issue for the EEOC if you fail to do so for disabled individuals who are not injured on the job), you should track how many pregnant vs. non-pregnant employees brought in restrictions relating to off-the-job illnesses or injuries each year such that they were denied light duty in order to make sure this uniformly-applied policy is not having an unintended disparate impact on pregnant workers.

On a final note, the Supreme Court in Young noted in another “extra part” that it would consider any such “on-the-job injury only” light-duty policies to be inherently suspect from a disparate impact perspective unless the employer could show that having to provide light duty work for pregnant employees was unduly burdensome in that it added considerably to the number of employees for whom such assignments must be provided. For instance, if hundreds of employees who are injured on the job every year are provided with light duty vs. twenty or so pregnant employees who are not, this could be an issue from a disparate impact perspective. As it would be difficult for the employer to show that providing light duty to twenty or so more employees on top of the hundreds who are already receiving it is unduly burdensome so as to create a non-discriminatory business reason as to why light duty could not also be provided to pregnant employees in order to “treat them the same as others who are similarly-situated (i.e., temporarily restricted) in their ability to work” as is required under the PDA. The EEOC’s Guidance on Pregnancy Accommodation which was issued shortly after the Young decision in 2015 also incorporates this analysis.

So, this is something employers considering or currently maintaining such “light-duty-only-for-those-injured-on-the-job” policies should take into account in so doing as well.

For further assistance navigating this pregnancy accommodation realm, please contact Stacie Caraway or any other member of our Labor & Employment Law Practice Group.