Until recently, the United Parcel Service (UPS) utilized the well-known slogan, “What can brown do for you?” After deciding last Monday to hear Young v. UPS during its next term, the Supreme Court will be faced with the question of “what brown must do” for its pregnant employees under federal law. (The Fourth Circuit’s decision and the briefs filed in the case (to date) can be found here.)
In Young, the plaintiff, Peggy Young, was covered by the terms of a collective bargaining agreement (CBA). Among other things, the CBA required UPS to offer: (1) temporary work assignments for employees who suffered on-the-job injuries; (2) light-duty work for employees who were disabled as defined by the Americans with Disabilities Act (ADA); and (3) an “inside job” (i.e., one that did not require driving) to employees who lost their certification from the Department of Transportation. UPS was not required by the CBA to make any accommodations for employees who were injured while not on the job.
Ms. Young began working for UPS in 1999 and, by 2002, was working as an “air driver” for the company, meeting an airport shuttle containing packages and letters, and delivering them immediately. One of the essential functions of UPS air drivers, according to the company’s written job description, was the requirement that the employee be able to “lift, lower, push, pull, leverage and manipulate . . . up to 70 pounds” of letters and packages at a time and to “[a]ssist in moving packages weighing up to 150 pounds.” Nevertheless, according to Ms. Young, it was rare for her, as a practical matter, to have to lift any packages heavier than 20 pounds.
After she became pregnant in the summer of 2006, Ms. Young presented UPS with a medical provider’s note recommending that she be restricted to lifting no more than 20 pounds during her pregnancy. UPS management declined to accommodate this restriction and instead required her to take a medical leave of absence, the majority of which was unpaid.
Alleging that UPS discriminated against her by failing to accommodate her the same way it accommodated non-pregnant employees with temporary lifting restrictions, Ms. Young filed suit in federal district court. UPS responded that it was merely applying its neutral policy and, therefore, did not discriminate against Ms. Young on the basis of her being pregnant. The district court granted summary judgment in favor of UPS, finding that its policy was “gender neutral” and did not evidence discriminatory intent toward pregnant women. On appeal, the Fourth Circuit affirmed. (Notably, Ms. Young filed her complaint prior to the passage of the Americans with Disabilities Act Amendments Act of 2008 (ADAAA), and all of the courts to analyze the suit have exclusively focused on the pre-2008 ADA and corresponding case law.)
The Supreme Court is being called upon to interpret the Pregnancy Discrimination Act of 1978 (PDA), an amendment to Title VII. The relevant portion of the PDA states:
The terms “because of sex” or “on the basis of sex” include, but are not limited to, because of or on the basis of pregnancy, childbirth, or related medical conditions; and women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes . . . as other persons not so affected but similar in their ability or inability to work[.]
(Emphasis added). Perhaps significantly, the language of the PDA is contained within the “Definitions” section of Title VII; it does not expressly state a separate cause of action. See 42 U.S.C. § 2000e(k).
The outcome of the case appears to hinge on the answer to three questions. First, is an employer’s “pregnancy-blind” policy sufficient to insulate it from liability? Second, if not, who are considered to be “persons not so affected [i.e., not pregnant] but similar in their ability or inability to work” for purposes of sex discrimination claims? Third, does the answer to these questions depend on whether the case arises under the ADA before its 2008 amendments, as opposed to after the passage of the ADAAA?
If the Court answers the first question, it will resolve a significant circuit split on the issue. The Fourth, Fifth, Seventh, and Eleventh Circuits have each concluded that employers who treat pregnant employees the same as those with off-the-job injuries do not violate the PDA, while the Sixth and Tenth Circuits (as well as EEOC Guidance) have held that evidence that pregnant and non-pregnant employees (including those injured off the job) were treated differently is sufficient for a complaint to proceed.
The answer to the second question, if given, would also offer valuable guidance to employers and lower courts alike. On one hand, unlike an employee who suffers, for example, a back injury while straining to lift packages, pregnancy (usually) does not occur while the employee is performing her job duties. On the other hand, people would not commonly refer to pregnancy as an “injury” of any sort. Rather, much like on-the-job injuries, pregnancy may impose temporary physical limitations.
The case has already garnered significant media attention and looks to be one of the more high-profile decisions that the Court will render in the coming 12 months. In the meantime, employers should ensure both that their accommodation policies are gender-neutral and that any accommodations offered to employees injured off the job are also offered to pregnant employees during their pregnancy.