Shift Expected on Pregnancy Accommodation

Should employers treat pregnant employees who suffer temporary disabilities the same way they treat other employees with temporary disabilities?

Yes, says the U.S. Office of the Solicitor General.

However, Solicitor General Donald B. Verrilli Jr,  says most federal appellate courts who have addressed the issue have decided it incorrectly by holding that employers do not have to accommodate pregnant workers who suffer temporary pregnancy-related disabilities.

Verrilli nevertheless recently recommended that the U.S. Supreme Court decline to review a case in which Peggy Young, a  United Parcel Service driver, was denied “light duty” work when she was pregnant, despite a  doctor’s note stating she should not lift more than 20 pounds during the first half of her pregnancy and not more than 10 pounds for the second half.

Verrilli said two developments may prompt courts to re-assess the issue of pregnancy accommodation. He said the  U.S. Equal Employment Opportunity Commission is “currently considering the adoption of new enforcement guidance on pregnancy discrimination.”  He also said 2008 amendments to the Americans with Disabilities Act  cover a broader scope of impairments.  Pregnant workers who can’t get protection under the Pregnancy Discrimination Act of 1978 (PDA) may have better luck with the ADA, he said .

This plain language of the PDA appears to require employers to accommodate pregnant employees. The PDA provides that “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.” Yet,Verrilli states, “a majority of the courts of appeals . . . to have considered claims similar to [Young’s] have erred in interpreting Title VII’s requirement that employers treat employees with pregnancy-related limitations as favorably as nonpregnant employees who are similar in the ability or inability to work.”

When UPS refused to assign Young to a light duty, she was forced to take leave without pay until after her child was born. She then filed a lawsuit in which she alleged that UPS had discriminated against her based on her gender. The UPS regularly offered light-duty assignments to employees who were injured on the job, eligible to receive accommodations under the Americans With Disabilities Act, or who lost their Department of Transportation certification.

A federal judge dismissed the Young’s lawsuit,  Young v. United Parcel Service, Inc., on a pre-trial motion filed by UPS and the dismissal was upheld by the U.S. Court of Appeals for the Fourth Circuit. which is based in Virginia.  Young filed a petition asking the U.S. Supreme Court to reverse the 4th Circuit’s decision.  If the Court decides not to decide Young’s case, she will be left without a remedy.

Verrilli said he agrees with Young that the 4th Circuit  is wrong and that employers are required by Title VII of the Civil Rights Act of 1964 and the PDA to provide a reasonable accommodation for pregnancy-related conditions.

The Office of the Solicitor General is regularly asked to file briefs with the Court recommending which cases should be addressed by the Court.

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