Recently, the U.S. Supreme Court issued its decision in Young v UPS. The case addresses the application of the Pregnancy Discrimination Act of 1978 ("PDA") and the level of accommodations that must be provided to pregnant woman seeking to have modified duty because of temporary impairments or work restrictions (such as lifting limits). The Court determined that (under the law in place pre-2009) a pregnant employee may be affirmatively entitled to additional reasonable accommodations, regardless of whether she is technically "disabled" under the ADA, if other similarly limited employees receive such accommodations, even if an employer offers a facially "neutral" policy that does not differentiate against pregnant women specifically.
However, the Court also indicated that pregnant employees are not automatically entitled to the same degree of accommodation that others might be afforded for reasons that have specific justifications, such as seniority/tenure, rejecting Ms. Young's position that pregnant women should be entitled to essentially a "most favored nation" status. The case was remanded for further consideration. Thus, this Supreme Court decision is a mixed bag for employers, neither validating UPS's earlier approach (UPS has since revised its policy) nor determining that it was a violation.
It is important to view this ruling in the bigger context, because the ADA Amendments Act of 2008 (which went into effect in 2009) trumps any application of earlier law. The PDA remains in effect, but complying with it is not sufficient, where the ADA as amended is now more stringent. To comply with the 2008 Amendments, employers should recognize that they are required to provide accommodations to employees who need temporary accommodations (such as lifting restrictions), including pregnant employees, even where the cause of the restriction was not job-related. Thus, whether an employee cannot lift heavy items because of an injury playing basketball or because of being pregnant, the employer should make reasonable efforts to provide an accommodation just as much as if the injury happened while at work. Further, the EEOC's interpretation of the current law, which takes a pro-employee stance in affording pregnant employees increased protection to retain their jobs, is entitled to deference.
Employers should also keep in mind that the Pregnant Workers' Fairness Act is before Congress and could change the landscape yet again. Meanwhile, similar legislation and mandates, providing specific protections to employees based on pregnancy or childbirth, already have been adopted in numerous states and cities, including: California, Delaware, Hawaii, Illinois, Iowa, Maryland, Minnesota, New Jersey, West Virginia, Central Falls, New York City, Philadelphia, Providence, and Washington, DC. Other states, such as Alaska (for public sector employees), Connecticut, Louisiana, and Texas, also offer more limited rights for pregnant employees to be transferred to different positions.) Some of these laws and requirements have gone into effect recently, so businesses with employees in these locations should monitor developments carefully and check with legal counsel to make sure that their current approach is compliant.
The ultimate take-away here is that when employers offer benefits -- such as light duty -- to one group of employees, the companies should consider carefully whether they are required to provide those same benefits to pregnant employees also. The safer, advisable course would be to make the same accommodations available to pregnant employees unless there is a clear reason why it would not be feasible to do so and a defensible basis for the distinction that is not discriminatory. Even then, having a different approach will invite litigation and may therefore prove costly. It is important to have legal counsel review such employment policies and practices to assess exposure under federal, state, and local laws.