But, I’ll do my best to sort it out for you.
Let’s assume that you have a pregnant employee who tells you that she has a lifting restriction. In the past, you have accommodated employees with disabilities who had similar lifting restrictions. You’ve also done the same for folks who got injured on the job and others who lost their Department of Transportation (DOT) certifications.
If you don’t provide the same accommodation to the pregnant employee, have you violated the Pregnancy Discrimination Act?
Yesterday, in what the dissenting Justice Scalia described as “inventiveness posing as scholarship—which gives us an interpretation that is as dubious in principle as it is senseless in practice,” the majority of the Supreme Court in its opinion in Young v. United Parcel Service, Inc. suggested that the answer is yes.
[By the way, that Justice Scalia really has a way with words. It would’ve taken me a fortnight to come up with that description. Sadly, I would have procrastinated to the last minute on my dissent and gone with something like, “Damn, that majority ish is wack, yo! #dissentonfleek”]
The test for determining when to accommodate a pregnant employee.
The lawyers will know it as the McDonnell Douglas test. For you non-lawyers, it’s gonna go something like this:
- First, the plaintiff must show that she is pregnant, that she sought an accommodation, that the employer did not accommodate her, and that the employer did accommodate others “similar in their ability or inability to work.” (What “similar in their ability or inability to work” means remains a bit of a mystery to me. Hence, the lede).
- Then, it’s the employer’s turn to show that it had a legitimate business reason not to accommodate the plaintiff. Generally, cost or convenience will not suffice.
- If the employer meets its burden, then it will be up to the plaintiff to show that employer’s reason is pretextual. Here’s how the Court suggests this can be done:
“By providing sufficient evidence that the employer’s policies impose a significant burden on pregnant workers, and that the employer’s “legitimate, nondiscriminatory” reasons are not sufficiently strong to justify the burden, but rather—when considered along with the burden imposed—give rise to an inference of intentional discrimination. The plaintiff can create a genuine issue of material fact as to whether a significant burden exists by providing evidence that the employer accommodates a large percentage of nonpregnant workers while failing to accommodate a large percentage of pregnant workers.”
What the test is not.
The majority made clear that the PDA does not say that the employer must treat pregnant employees the “same” as “any other persons.” The statute does not grant pregnant workers a “most-favored-nation” status. Put another way, a pregnant employee does not automatically receive the best accommodation that the company has previously provided to a non-pregnant employee.
You can also ignore the recent EEOC Guidance, which states that “an employer may not deny light duty to a pregnant employee based on a policy that limits light duty to employees with on-the-job injuries.” The Supreme Court said that it could not rely significantly on the EEOC’s determination. (Not that EEOC Commissioner Chai Feldblum is complaining. She’s so not complaining).
Also, the test does not limit the comparison between pregnant employees to those employees performing the same or very similar jobs. In his concurrence, Justice Alito stumps for this test. (Yes, the generally conservative Justice Alito concurred in the result). But the majority (including the generally conservative Chief Justice Roberts) was not that explicit. So, it must be broader.
Practical advice for employers.
In his dissent, Justice Scalia foreshadowed that this case could be a springboard for pregnant employees to pair a disparate treatment claim, like the one Ms. Young presented, with a disparate impact claim, where a facially neutral policy “fall[s] more harshly on one group than another and cannot be justified by business necessity.” Indeed, the majority concluded that a neutral reason for refusing to accommodate a pregnant woman is pretextual if “the employer’s policies impose a significant burden on pregnant workers.” And that likely is going to be a jury question.
So, do you want to explain to a jury why you didn’t accommodate the pregnant employee, while you did accommodate the non-pregnant employee who was injured on the job with the precise accommodation requested by the pregnant employee? Or, do you just want to provide the same reasonable accommodation to the pregnant employee and save the six-figure cost of litigation, plus a possible jury verdict for the plaintiff?
If it’s the former (or even the latter, I guess), maybe, holla at your boy 😉