Caught in a Sticky Web: Employers on the wrong side of the law governing treatment of pregnant employees

If I had to sum up an employer’s legal responsibility to pregnant employees it would be this: Within reason, employers should work with pregnant employees to keep them on the job. The U.S. Supreme Court’s recent decision in Young v. UPS has a lot of people talking, including the EEOC, about what employers must now do to accommodate pregnant workers. But, how far do employers need to go? This article tries to make sense of it all, and offers some practical tips to employers on how to stay on the right side of the law when it comes to their treatment of pregnant employees.

Peggy Young was a UPS employee whose job required her to lift up to 70 pounds by herself. After she became pregnant, she was placed on a 20 pound lifting restriction. As a result, UPS put Young on unpaid leave. UPS had a policy of offering light duty for workers whose disabilities arose from on the job injuries, but UPS did not have light duty for workers whose restrictions arose from an off the job injury or circumstance. Since Young’s pregnancy presumably arose off the job, she did not qualify for UPS’s light duty. The problem for UPS was that UPS created exceptions to its policy for certain other temporary off the job circumstances, such as employees who lost their driver’s licenses, by allowing those workers to temporarily work in a warehouse, where no driver’s license was required.

Young felt the way UPS implemented its policy discriminated against her and other pregnant workers, and she sued UPS for violations of the Pregnancy Discrimination Act. Her case went all the way to the United States Supreme Court, which held that UPS violated Young’s rights by failing to treat her like other workers who were temporarily unable to perform their job duties due to off the job circumstances.

This decision has many employers scratching their heads about what to do with pregnant employees with work or lifting restrictions. Many employers had policies similar to UPS’s, but the ruling may require employers to re-visit how they implement their policies to make sure they don’t unwearyingly discriminate. Moreover, shortly after the decision, the EEOC issued a Notice of Enforcement Guidance on June 25, 2015, outlining a number of specific policies it considers discriminatory. In short, things are changing. But here are three practical tips for employers:

Be Consistent. And to be consistent, you have to consider more than just your pregnancy policies. Employers should implement policies that consistently accommodate all similar employees. The UPS policy provided light-duty accommodations only for employees injured on-the-job. UPS inconsistently applied its policy by providing light-duty accommodations or warehouse positions to employees whose disability arose from conditions off-the-job. The Supreme Court’s decision focused on these inconsistencies and ultimately ruled against UPS for failing to treat pregnant workers like other workers who were similar in their ability or inability to work. Employers must treat pregnant employees consistently with their treatment of non-pregnant employees. An employer should ask itself, “In the past, to whom have we—the employer--given light duty and why?” If your answer fails to identify a non-biased reason for treating a pregnant worker differently, then it’s probably not a good enough reason.
Be Aware (of what is going on in your company). In my practice, I find it remarkable how many employers and managers are not aware of how policies are implemented on a company-wide basis. This is because different managers may look at and treat the same situations differently. But, an employer can’t make personnel decisions in a vacuum. How an employer treats one employee can affect how an employer treats all employees. An employer should be aware of all exceptions to ensure policies do not “significantly burden” pregnant employees. A “significant burden” may include benefits or exceptions for non-pregnant workers that are not offered to pregnant workers. Employers must know how they’ve treated other employees within their organization in order to ensure fairness. Keep a record of what you did and why. Ask someone outside of your department or company to review your policy to see whether they think it’s fair.
Don’t Litigate: Accommodate! Employers are almost always better off looking for non-litigious solutions to their conflicts with employees, in part because the law is growing increasingly more protective of employees. For example, in 2008, Congress expanded the ADA’s definition of “disability” to include any physical or mental impairment that substantially limits a person’s ability to stand, lift, or bend. This latest definition is pretty broad and includes pregnant employees who are limited in their ability to stand, lift, or bend.¹ An employer should probably start with a presumption that any physical or mental limitation is a disability and make its decision to accommodate, or not, from there. Often the solution is to work creatively with the employee to find a way to keep the employee on the job.

Employers are frequently forced to make decisions against an ever expanding universe of potential liability. Good, well-meaning people can unknowingly step into liability; usually without even realizing the looming legal crisis until after it’s upon them. The key to staying clear of danger is to consider different perspectives. In other words, investigate and ask before you act. Failing to see the employee’s perspective and having a blind spot for how the employer treated other employees only increases an employer’s risk of being caught in a web of legal problems.

¹See 42 U.S.C. §§ 12102(1)-(2) ↑