Last year, I railed against the Pregnant Workers Fairness Act, a bill
that, if passed, would require employers to make a reasonable accommodation for
an employee's pregnancy, childbirth, and related medical conditions. I argued
that the law does not need alteration because Title VII, through the Pregnancy
Discrimination Act, already requires employers to accommodate pregnant women at
least at the same level as they accommodate any other employee with a similarly
disabling short-term medical condition.
Last week, in Young v. UPS, the 4th Circuit Court of Appeals held
that Title VII does not require employers to provide pregnant women a
"reasonable accommodation" when, as a result of pregnancy, they are limited in
their ability to perform work duties. Was my musing about the evils of the
Pregnant Workers Fairness Act off-base?
The facts of Young are simple. UPS required Ms.
Young to be able to lift up to 70 pounds as part of her job as a package
delivery driver. After she became pregnant, her doctor limited her lifting. Ms.
Young requested that UPS move her to a light duty assignment. UPS's collective
bargaining agreement allowed an employee to work a light duty assignment only
because of an "on-the job" injury or when "disabled" under the ADA. Because Ms.
Young did not meet either of these categories UPS denied her request.
Ms. Young argued that UPS violated Title VII because the
Pregnancy Discrimination Act required UPS to provide her with a "reasonable
accommodation" to the same degree the employer accommodated a disabled
employee. The 4th Circuit rejected her argument, finding that where an
employer's policies treat pregnant workers and non-pregnant workers alike, it
has complied with Title VII:
Interpreting the PDA in the manner Young and the ACLU
urge would require employers to provide, for example, accommodation or light
duty work to a pregnant worker whose restrictions arise from her (off-the-job)
pregnancy while denying any such accommodation to an employee unable to lift as
a result of an off-the-job injury or illness. Under this interpretation, a
pregnant worker who, like Young, was placed under a lifting restriction by her
healthcare provider and could not work could claim that the PDA requires that
she receive whatever accommodation or benefits are accorded to an individual
accommodated under the ADA, because the pregnant worker and the other
individual are similar in their ability or inability to work-i.e., they both
cannot work. By contrast, a temporary lifting restriction placed on an employee
who injured his back while picking up his infant child or on an employee whose
lifting limitation arose from her off-the-job work as a volunteer firefighter
would be ineligible for any accommodation. Such an interpretation does not
accord with Congress's intent in enacting the PDA.
Reading this decision, you might be thinking to yourself,
"Hyman, you're wrong. Title VII does need to be amended to grant accommodation
rights to pregnant women." You, however, would be jumping the gun.
As Robin Shea astutely observed at her Employment & Labor
Insider, because of 2009's ADA Amendments Act, today's ADA is very different
than the statute in effect during Ms. Young's 2006 pregnancy:
In 2007, the "old" Americans with Disabilities Act was in
effect, which had some pretty stringent definitions of who was considered
"disabled." Not only was a 20-pound lifting restriction generally not
considered "disabling," but virtually no temporary impairment, no matter
how severe, was. And pregnancy is not a "disability" in itself because the ADA
says so. Accordingly, Ms. Young was out of luck.
The ADAAA, of course, greatly expanded the definition of
"disability," and the interpretations of the Equal Employment Opportunity
Commission indicate that a temporary condition that lasts more than six months
could indeed be considered "disabling." Ditto for a 20-pound lifting
In other words, today an employer could be required to
provide a reasonable accommodation to a pregnant employee to the same extent it
provides a non-pregnant disabled employee an accommodation, or face the
possibility of a pregnancy discrimination lawsuit.
Handling accommodation requests by pregnant employees is
a thorny area of the law. My recommendation is instead of trying to sort
through these issues for yourself, you contact your employment counsel before
denying an accommodation request made a pregnant employee.
Thanks to Justine
Konicki for her help on this post.
Visit the Ohio Employer's Law Blog for more
Presented by Kohrman Jackson & Krantz,
with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a
partner in our Labor
& Employment group, at (216) 736-7226 or firstname.lastname@example.org.
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