By Anthony Kaylin, courtesy SBAM Approved Partner ASE
In 1978 Congress passed the Pregnancy Discrimination Act (PDA). The first clause of the PDA specifies that Title VII’s prohibition against sex discrimination applies to discrimination “because of or on the basis of pregnancy, childbirth, or related medical conditions.” The PDA’s second clause states that employers must treat “women affected by pregnancy . . . the same for all employment-related purposes . . . as other persons not so affected but similar in their ability or inability to work.” Fast forward to 2012 when a pregnant UPS driver filed a PDA discrimination case.
In the Young v. UPS case (Young v. United Parcel Service, No. 12–1226 (2015)), Young was a part-time driver for UPS. When she became pregnant, her doctor advised her that she should not lift more than 20 pounds. UPS, however, required drivers like Young to be able to lift up to 70 pounds. UPS told Young that she could not work while under a lifting restriction. However, UPS had policies that accommodated workers who were injured on the job, had disabilities covered by the Americans with Disabilities Act (ADA), or had lost Department of Transportation (DOT) certifications.
Young contended that UPS had accommodated several individuals under those policies whose disabilities created work restrictions similar to hers. She argued that these policies showed that UPS discriminated against its pregnant employees because it had a light-duty-for-injury policy for numerous “other persons,” but not for pregnant workers. UPS responded that, since Young did not fall within the on-the-job injury, ADA, or DOT categories, it had not discriminated against Young on the basis of pregnancy but had treated her just as it treated all other relevant persons.
The court ruled against Young in both the trial court and the Fourth Circuit Court of Appeals. However, the Supreme Court did not buy the UPS argument and ruled against UPS stating that a genuine dispute was raised by Young as to whether UPS provided more favorable treatment to at least some employees whose situation cannot reasonably be distinguished from hers. Specifically, UPS had three separate accommodation policies (on-the job, ADA, DOT) that, when taken together, demonstrated a genuine dispute as to whether the company provided more favorable treatment to at least some categories of employees under similar circumstances. The case was later settled in 2015 after UPS implemented a new pregnancy accommodation policy.
The takeaway for employers is that any accommodation request under the PDA should mirror an ADA request, and employers need to determine what accommodations were made in situations similar to having a pregnant employee. For example, lifting or other restrictions.
But there are other requirements of the PDA that employers need to be aware of as well. First, under the PDA, an employer cannot fire, refuse to hire, demote, or take any other adverse action against a woman if pregnancy, childbirth, or a related medical condition was a motivating factor in the adverse employment action. This is true even if the employer believes it is acting in the employee’s best interest.
The employee may not be qualified for FMLA, but many employers will provide an unpaid leave at least for the time allowed under the type of birth. As reported by ASE’s 2017/2018 Michigan Policies and Benefits Survey, at least 75% of all employers allow personal leave for medical reasons. And Michigan’s new Paid Sick Leave Law will require employers to provide at least 36 hours of paid leave in these situations.
Another area of concern which arises every so often is the forward-thinking manager who asks the woman applicant if she is married or is considering having children. Although this should be an illegal question, surprisingly it still occurs. The managers claim mostly that they are well-meaning and trying to determine workflow.
Moreover, any employee on a pregnancy leave must be treated like any other employee with respect to pay, seniority, and other benefits such as vacation calculation. And unless the job requires it, an employer should not require a return to work certification.
Finally, HR needs to ensure that managers are well-trained in this area. Managers, though again well-meaning, may require a woman who is lactating to use the bathroom. The bathroom is not appropriate, and a private room or office should be provided. Further, a small refrigerator should be available for the storage of the milk. Cost is de mininis.
As a side note, Sharon Fast Gustafson, who was Young’s lawyer, was nominated by President Trump to fill the position of General Counsel at the EEOC. Her appointment is still pending Senate approval.