With its forthcoming decision in Young v. United Parcel Service, Inc., the Supreme Court of the United States is expected to bring some much-needed clarity to the issue of what the Pregnancy Discrimination Act (PDA), 42 U.S.C. §2000e(k), requires of employers. The case involves the legality of a policy that makes light-duty work available to certain workers, but not to pregnant employees. The employee-driver who brought the suit claims that the PDA requires that the policy offer light-duty work to pregnant workers as well. The employer has argued that the law merely requires employers to treat pregnant employees the same way it treats nonpregnant employees that are similar in their abilities—which it claims its light-duty policy has done.
Background
Peggy Young was a delivery truck driver for United Parcel Service, Inc. (UPS). In 2006, Young requested and was granted a leave of absence to undergo in vitro fertilization. After becoming pregnant, she sought to extend her leave. Around the same time, Young gave her supervisor a doctor’s note indicating that she should not lift more than 20 pounds for the first half of her pregnancy.
UPS’s policy states that the essential functions for all drivers include the ability to lift packages weighing up to 70 pounds. In addition, the relevant collective bargaining agreement (CBA) provides temporary alternate work to employees who are “unable to perform their normal work assignments due to an on-the-job injury.” In accordance with this CBA, UPS offers light-duty work to those employees injured while on the job, or suffering from a permanent impairment cognizable under the Americans with Disabilities Act.
Another CBA provision requires UPS to give an “inside job” to drivers who have lost their certifications by the Department of Transportation (due to a failed medical exam, a lost driver’s license, or involvement in a motor vehicle accident) as long as the driver is capable of performing such a job. An inside job often involves heavy lifting and is typically not considered light-duty work.
Under both UPS policy and the CBA, a pregnant employee may continue working as long as she can perform the essential functions of her job. However, she is ineligible for light-duty work for any limitations arising solely as result of her pregnancy.
When Young spoke with UPS occupational health manager Carolyn Martin about her request to extend her leave, Martin informed Young that UPS policy would not permit her to continue working with her lifting restriction. Young requested either to stay in her regular job, which she claimed rarely required her to lift over 20 pounds, or to be given light-duty work. Martin later concluded that, based on UPS policy, Young was unable to perform the essential functions of her job and was ineligible for a light-duty assignment. Martin based this conclusion on her belief that she was required to treat Young the same as she would any other UPS employee who had a lifting restriction that did not result from an on-the-job injury or illness, and who could not perform his or her regular job.
Eventually, Young’s leave expired and she went on an extended leave of absence without pay or medical coverage. After giving birth, Young returned to work for UPS and later filed a race, sex, and disability discrimination lawsuit against UPS. The district court granted summary judgment in favor of UPS on Young’s PDA claim.
Fourth Circuit: Second Clause of the PDA
Young argued that UPS’s light-duty policy violated the second clause of the PDA. The Fourth Circuit Court of Appeals began its analysis by examining the statute’s language. The first clause of the PDA includes pregnancy-related conditions within the definition of sex discrimination:
The terms “because of sex” or “on the basis of sex” include, but are not limited to, because of or on the basis of pregnancy, childbirth, or related medical conditions; . . .
The second clause prescribes how “women affected by pregnancy” should be treated:
. . . and women affected by pregnancy . . . shall be treated the same for all employment-related purposes, including receipt of benefits under fringe benefit programs, as other persons not so affected but similar in their ability or inability to work . . .
Young argued that the UPS policy reserving light-duty work for certain employees (those injured on-the-job, ADA-disabled employees, and those who had lost their DOT certifications), but not pregnant employees, violated this second clause of the PDA.
The Fourth Circuit disagreed with Young. According to the court, Young’s argument implied that the PDA altered the traditional sex discrimination analysis under Title VII of the Civil Rights Act of 1964 by restricting the basis upon which employers may compare pregnant workers with nonpregnant workers. The Fourth Circuit recognized that the Supreme Court, in prior decisions, had stated that the PDA “makes clear that it is discriminatory to treat pregnancy-related conditions less favorably than other medical conditions.” However, the court found that Young’s interpretation of the PDA created a cause of action requiring employers to grant pregnant employees a favored status over nonpregnant workers.
The court agreed with other jurisdictions in reasoning that Young’s interpretation would transform the PDA from a prohibition against discrimination to an obligation to provide an accommodation to pregnant employees “perhaps even at the expense of other, nonpregnant employees.” “Such an interpretation does not accord with Congress’s intent in enacting the PDA,” the court found, “and would thus imbue the PDA with a preferential treatment mandate that Congress neither intended nor enacted.”
Thus, the court ruled that “where a policy treats pregnant workers and nonpregnant workers alike, the employer has complied with the PDA.” Thus, the court held that the policy was not direct evidence of pregnancy-based sex discrimination.
Cert. Granted and Oral Arguments
In the summer of 2014, the Supreme Court of the United States agreed to hear the case to decide the question presented by Young, as applied to the PDA:
Whether, and in what circumstances, an employer that provides work accommodations to nonpregnant employees with work limitations must provide work accommodations to pregnant employees who are “similar in their ability or inability to work.”
On December 3, 2014, the justices heard oral arguments on the PDA issues in the case. One of the issues on which the justices focused concerned how to interpret the statutory language—in particular, the language of clause two, “similar in their ability or inability to work.” The justices appeared to disagree on the proper interpretation of the first and second clauses of the PDA and returned to the issue throughout oral arguments.
Justice Kagan repeatedly questioned UPS’s argument regarding the meaning of the second clause, noting at one point that its “reading of the statute basically makes everything after the semicolon [the second clause] completely superfluous.” UPS argued that “the function of the second clause is to explain how Title VII principles apply to pregnancy,” to which Justice Kagan responded, “so you are saying it’s not doing anything new; it’s only explaining the old stuff.”
The Court’s decision will hopefully shed light on the meaning and interplay of both clauses, bring some certainty to employers’ obligations to pregnant employees under the PDA, and guide employers in their construction of light-duty policies.
Hera S. Arsen, Ph.D. is managing editor of firm publications and is based in the Torrance, California office of Ogletree Deakins.
