Please ensure Javascript is enabled for purposes of website accessibility

US high court case to clarify pregnancy discrimination

By: DOLAN MEDIA NEWSWIRES//January 12, 2015//

US high court case to clarify pregnancy discrimination

By: DOLAN MEDIA NEWSWIRES//January 12, 2015//

Listen to this article

By Traci Gentilozzi
Dolan Media Newswires

A pregnancy discrimination case argued last month to the U.S. Supreme Court is compelling employers to take a closer look at whether pregnant employees should be offered light-duty work, just like employees who suffer on-the-job injuries.

When decided by the Supreme Court later this year, Young v. United Parcel Service will determine whether employers are required to provide pregnant workers a light-duty work option, when prescribed by a doctor.

In Young, the 4th U.S. Circuit Court of Appeals held that UPS did not discriminate against a pregnant employee, Peggy Young, by not offering her light-duty tasks under its workers’ compensation plan and instead placing her on unpaid leave.

Like many other federal courts, the 4th Circuit held that when an employer provides a light-duty option under a workers’ comp policy, it does not also have to make it available to pregnant employees.

But a few circuits, such as the 6th, have taken a different approach, saying if light-duty is provided to employees injured on the job, then it should be an option for pregnant workers.

Nicholas Roumel, an Ann Arbor plaintiffs’ attorney, said employers need to realize that pregnant workers can perform most job functions.

“Pregnant workers don’t need to be treated like eggshells,” he said.

According to Detroit attorney Terry Bonnette, who represents employers, most federal circuit courts recognize a legal distinction between light-duty restrictions for workers’ comp purposes and pregnancy-related limitations.

But in light of Young, he said employers are now considering whether to eliminate workers’ comp programs allowing light-duty work so they don’t have to offer it to any employee, or whether to open it up to pregnant workers.

“It’s a choice for employers because nothing forces them to offer workers’ comp programs,” Bonnette said. “Many employers are looking at their existing policies to see whether they are in compliance with Equal Employment Opportunity Commission guidelines and with the law in terms of light duty.”

Case history

In Young, the plaintiff’s job with UPS involved her lifting up to 70 pounds. But when she became pregnant, she was advised by her doctor to not lift more than 20 pounds. So the plaintiff asked for light-duty work, claiming that because UPS provided it to employees under its workers’ comp policy, she should be offered the same.

But UPS said the plaintiff was ineligible for light-duty restrictions because she did not suffer a work-related injury. Instead, the company put her on unpaid leave.

The plaintiff sued, claiming UPS violated the Pregnancy Discrimination Act. The PDA, an amendment to Title VII of the 1964 Civil Rights Act, says employees disabled by pregnancy, childbirth or related medical conditions must be treated the same as other similarly situated employees.

The 4th Circuit held that UPS did not deny pregnant employees the same rights as those who met its workers’ comp requirements for light-duty accommodations.

When issued, the U.S. Supreme Court’s decision will provide much-needed clarity for employers, Bonnette said.

“The federal law will finally be consistent among the circuits,” he said.

‘Flashpoints’

Bonnette said the reason that light-duty questions arise is because pregnancy is not considered a disability, and so pregnant employees do not necessarily qualify for Americans with Disabilities Act accommodations.

And in recent years, issues surrounding pregnancy and light-duty work have become a “flashpoint” for several reasons, he said.

“The EEOC recently identified pregnancy discrimination as a target area,” said Bonnette.

He pointed out that, this past summer, the EEOC issued a new regulation that says if an employer offers light-duty work for any reason it must make the same option available to pregnant employees.

“The EEOC takes the position there is no meaningful difference and it doesn’t matter why the restriction is needed,” Bonnette noted.

In addition, more women are working well into their last trimester of pregnancy, he said. “We’ve seen an increase in the number of pregnancy-related medical restrictions presented to employers.”

Moreover, the ADA’s definition of disability was broadened about five years ago, and so the EEOC now takes the position that a short-term injury may be a temporary disability, Bonnette said.

“This has brought into play pregnancy-related complications, which arguably may now be considered a disability that, in the past, were only a short-term condition,” he said.

A temporary condition

Bloomfield Hills attorney Sue Ellen Eisenberg, who has represented both employers and employees, pointed out the issue is not strictly workers’ comp related.

“That is tantamount to saying that the pregnancy occurred off the job site and we only give light-duty work to an on-the-job insured,” the private practitioner said.

“What if a man and a woman who work at same place have sex in the parking lot during work hours and she becomes pregnant — are we going to say that pregnancy is an ‘injury’?” she asked. “What if there was a rape on site during work hours and the employee became pregnant?”

The distinctions do not make sense, she said. “It’s not a workers’ comp matter; it’s a matter of a temporary disability.”

“It’s amazing to me that in 1978 Congress passed the PDA and now, 36 years later, people are still stumbling over whether there’s an adverse impact,” Eisenberg noted. “It’s my position that since the PDA, it has always been wrong to treat workers differently because they’re pregnant.”

Be proactive

Employers need to review their policies and assess whether they comply with the new EEOC guidelines, Bonnette advised.

In addition, he said employers should look at whether they can require a pregnant employee to take an unpaid leave of absence.

“They need to examine whether leave policies are in compliance with the PDA,” Bonnette said. “For example, if the company has a policy that the employee must have worked 12 months to take a leave of absence, does that have a disparate impact?”

According to Eisenberg, employers should be proactive and make “smart” choices by affording pregnant employees light-duty work.

She noted that, in Young, UPS already has changed its policies to allow light-duty restrictions for pregnant workers.

“Companies need to make sure their managers and human resources people know that temporary limitations have to be considered under the PDA,” Eisenberg said, “and that being equal on the basis of sex means that we give pregnant women the same exact accommodations as other workers, including light-duty work and different kinds of temporary assignments.

“There is always a way to make an accommodation for pregnant workers.”

Polls

Should Steven Avery be granted a new evidentiary hearing?

View Results

Loading ... Loading ...

Legal News

See All Legal News

WLJ People

Sea all WLJ People

Opinion Digests