BY ISEL PEREZ — In 1978, Congress amended Title VII of the Civil Rights Act of 1964 by adding the Pregnancy Discrimination Act (“PDA”), which prohibits sex discrimination on the basis of pregnancy. 42 U. S. C. § 2000e(k). The second clause of the PDA provides that employers must treat “women affected by pregnancy, childbirth, or related medical conditions . . . the same for all employment-related purposes . . . as other persons not so affected but similar in their ability or inability to work.” The interpretation of the second clause has led to much dispute, which recently came to a front in the Supreme Court’s decision in Young v. United Parcel Service, Inc.
In this case, Peggy Young, a former delivery driver who was denied work accommodations during her pregnancy in 2006, brought suit against her former employer, the United Parcel Service (“UPS”). The issue in the case was whether the PDA requires employers to treat pregnant persons the same as other non-pregnant persons similar in their ability to work. The employer in this case offered light duty accommodations to persons injured on the job and to disabled worked but denied the same accommodation to pregnant workers.
The Supreme Court granted certiorari in Young’s case in July 2014. Two weeks later, the Equal Employment Opportunity Commission (“EEOC”) issued guidance attempting to clarify the ambiguity in the second clause. The guidance stated that “[a]n employer may not refuse to treat a pregnant worker the same as other employees who are similar in their ability or inability to work by relying on a policy that makes distinctions based on the source of an employee’s limitations (e.g., a policy of providing light duty only to workers injured on the job).” The EEOC also provided an example, which appears to be based on the facts of Young’s case:
An employer has a policy or practice of providing light duty, subject to availability, for any employee who cannot perform one or more job duties for up to 90 days due to injury, illness, or a condition that would be a disability under the ADA. An employee requests a light duty assignment for a 20-pound lifting restriction related to her pregnancy. The employer denies the light duty request, claiming that pregnancy itself does not constitute an injury, illness, or disability, and that the employee has not provided any evidence that the restriction is the result of a pregnancy-related impairment that constitutes a disability under the ADA. The employer has violated the PDA because the employer’s policy treats pregnant employees differently from other employees similar in their ability or inability to work.
On March 25, 2015, the Supreme Court overturned the Fourth Circuit’s decision in Young’s case, which granted summary judgment to UPS. The Court rejected both Young’s and the UPS’ interpretation of the PDA clause and remanded the case to the court of appeals. Young argued that the second clause required UPS to provide the same light-duty and other work accommodations “to workplace disabilities caused by pregnancy that it provides to workplace disabilities that have other causes but have a similar effect on the ability to work.” Conversely, UPS argued that “the second clause does no more than define sex discrimination to include pregnancy discrimination.” The EEOC’s interpretation of the clause in its guidance further complicated the issue, especially because its interpretation lent support to Young’s claim.
While the Court did not interpret the second clause (a disappointment to many practitioners), its opinion suggests that there are issues concerning the EEOC’s pregnancy discrimination guidance. In deciding whether the guidance from the EEOC had any “power to persuade,” the Court noted that the EEOC’s current stance was “inconsistent with positions for which the Government ha[d] long advocated,” and was promulgated after certiorari was granted. The lack of explanation of the basis for the guidance, coupled with the issues noted before, led the Court to determine that it could not rely on the EEOC’s interpretation. In effect, the Court stated that the EEOC’s guidance was unpersuasive, and it further suggests that those provisions are probably invalid. In an announcement issued, the same day as the decision in Young, with statements of EEOC Chair Jenny Yang and EEOC General Counsel David Lopez, the EEOC noted that its “pregnancy discrimination guidance comports with some but not all aspects of the Court’s decision” and that the Commission will “make necessary changes to the guidance in accordance with the decision.”
The immediate impact of this case requires the EEOC to analyze its guidance and provide evidence of consideration to justify its interpretation of the PDA in order for the interpretation to have any persuasive force in court. While the Court’s decision in Young does not appear to be clearly pro-plaintiff (employee) or pro-defendant (employer), it does suggest that the plaintiff may be able to demonstrate disparate impact discrimination based on nonuniform work accommodation policies. It would also not be a stretch to suggest that if the EEOC is able to establish due consideration in support of its interpretation, then employers might have to rework their work accommodation policies to be more uniform. All in all, while the Supreme Court decision revives Young’s case, it is unclear how far-reaching of an effect it will have on the EEOC and the interpretation of the PDA.
