The United States Supreme Court issued its much anticipated decision in Young v. United Parcel Service, (U.S. Sup. Ct., March 24, 2015), in which the Court set forth a new standard for litigating pregnancy discrimination claims and arguably injected considerable uncertainty into “restricted duty” or “light duty” work programs.
Peggy Young worked for UPS as a part-time driver. Part of Young’s day-to-day responsibilities included lifting boxes weighing as much as 70 pounds without assistance. Young became pregnant and, in the course of her routine pre-natal care, Young’s doctor advised that she not lift more the 20 pounds during the first 20 weeks of her pregnancy and 10 pounds for the remainder of her pregnancy. The record shows that Young had previously experienced several miscarriages, but there is nothing to suggest Young’s then-current pregnancy was “high risk,” a-typical or otherwise presented medical complications unique to Young. With doctor’s note in hand, Young requested UPS accommodate her lifting restrictions. At the time, UPS had a formal “light duty” work assignment policy under which it would accommodate medical restrictions of employees who were injured “on the job” or those suffering from a “disability” under the Americans with Disabilities Act. In addition, UPS accommodated workers unable to drive because they lost DOT-required driving certifications. Because Young’s medical condition (her pregnancy) did not fit within any of the categories recognized by UPS, UPS declined to provide her with light duty, instead placing Young on an unpaid leave of absence for the duration of her pregnancy.
Young sued UPS under Title VII claiming that UPS discriminated against her on the basis of her pregnancy and gender by refusing to provide her with a light duty work assignment which UPS otherwise provided workers with “similar” restrictions.
EEOC Issued New Guidance
While the case worked its way through the courts, the EEOC adopted a controversial Pregnancy Discrimination Enforcement Guidance. Over the vocal dissent of two EEOC Commissioners, the EEOC opined that Title VII and the Pregnancy Discrimination Amendments to Title VII mandated that employers treat pregnancy-related medical restrictions in the same manner as medical restrictions unrelated to pregnancy. Thus, the EEOC Guidance reasoned, if an employer accommodates the medical restrictions of some workers, that employer must provide the same accommodations to workers with similar restrictions caused by pregnancy. (For Robinson+Cole’s Alert on the EEOC Guideline, click here.)
Availability of Restricted Duty Programs
A significant number of manufacturers and other employers have created formal restricted duty work assignment programs designed to continue employing employees unable to perform the full-range of their normal work duties because of medical restrictions.. Workers compensation carriers often encourage employers provide these alternative assignments to reduce workers compensation costs, reasoning that it is better to receive some economic benefit from the worker than to compensate an otherwise productive employee who is inactive. Other employers have adopted such programs to meet the requirements of the Americans with Disabilities Act, which require an employer to reasonably accommodate a worker suffering from a covered disability. Even if an employer has not adopted a formal policy providing for restricted duty work assignments, many employers have informal, ad hoc arrangements which relieve a worker of required tasks for various periods of time due to medical or other issues, for example, reassigning a worker who has driving responsibilities after the suspension of her or his drivers’ license.
Given the significant number of companies with restricted work assignment policies, the EEOC’s Guidance and the anticipated Court decision drew considerable attention.
The Court’s Decision
Rejecting the legal standards offered by every party involved in the case (Young, the United States as a “friend of the court,” and UPS), the Court crafted an entirely new standard for assessing the legality of employer restricted duty work policies when challenged as discriminatory on the basis of gender and pregnancy.
First, the Supreme Court rejected Young’s and the EEOC’s position as over-reaching, explaining that nothing in the legislative history of the Pregnancy Discrimination Act or Title VII suggested that Congress intended to extend to pregnant employees a “most favored nations” status. The Court rejected the EEOC’s Guidance, noting that it was adopted after the Court granted review in the case, was addressing a topic on which the EEOC had been silent for a lengthy period of time, and advanced a position inconsistent with that advanced by the EEOC in litigation over the years.
Having rejected the position advanced by Young and the EEOC, the Court also rejected the position advanced by UPS – that its policy was lawful on its face because it treated in the same manner all non-work-related medical restrictions (those cause by pregnancy and those caused by other non-work related medical issues). That approach, the Court wrote, ignores the clear Congressional intent in adopting the Pregnancy Discrimination Act – a mandate that employers treat pregnant employees the same as other employees experiencing “similar” medical issues.
The Court crafted a new test. The Court held that an employee challenging an employment policy on the basis of pregnancy discrimination could establish a threshold case of discrimination by showing that the employer failed to accommodate her and accommodated others with “similar” medical restrictions. The employer could defend that claim by showing that it had a legitimate, non-discriminatory reason for distinguishing between the two classes of workers – a reason which the Court said normally could not simply be that it was more expensive or less convenient to include pregnant employees in the group accommodated. If the employer met this burden, the plaintiff could still prevail if she could convince a jury that either the employer’s articulated reasons were not true or that employer’s program imposed a significant burden on pregnant workers and the employer’s reasons were not sufficiently strong to justify the burden on pregnant workers.
The Supreme Court’s Young decision, barely one month old, will force employers to globally address formal or informal restricted duty work assignment policies. The decision makes clear that considerations of cost and convenience, regardless of the size of the employer, normally will not be sufficient to justify any difference in treatment. Furthermore, by suggesting that it is for the jury to decide whether an employer’s proffered reasons for any difference in treatment are “sufficient” in light of the burden on pregnant workers, the Court seemingly precludes summary judgment for employers once an employee sets forth a threshold case of discrimination.
Manufacturers and their legal counsel should undertake a thorough review of their “restricted duty” or “light duty” policies in light of this significant case development.