The Supreme Court has spoken in Young v. UPS on the issue of whether employers can refuse to provide light duty to pregnant women on the ground that light duty is reserved for employees who are injured on the job. The answer? Probably not.
The Court created a test that says where an employer has a policy that applies to some but not all of its employees, and it does not apply the policy to pregnant employees, then a pregnant plaintiff can prove that the employer has discriminated on the basis of pregnancy by showing that non-application of the policy significantly burdens pregnant women and that the employer’s reasons for treating employees differently are not strong enough to justify the burden on pregnant women. The Court also said that if the employer’s reasons are that it would be too expensive or too inconvenient to apply the policy to pregnant women, those reasons are not sufficient.
Let’s look at how this plays out. If an employer provides light duty to employees who are injured on the job but not to pregnant women, it leaves itself open to a pregnancy discrimination lawsuit claiming that pregnant women are hurt by not being able to work light duty. To defend, the employer has to show that it has a legitimate, nondiscriminatory reason (other than expense or convenience) that justifies limiting light duty to those injured on the job. What could that reason be? I am having a hard time thinking of any that would pass muster under the Court’s test.
What about other policies? This case addressed only light duty policies, but conceivably could apply to other types of employer policies. If an employer had a policy that limited leave to employees who had been employed for a year or more, for example, it could be vulnerable to a claim of pregnancy discrimination on the ground that pregnant women often need leave and the burden on pregnant women of not having leave in their first year of employment is significant. The employer would have to have a sufficient reason for the policy that would be stronger than the burden on the pregnant employees. (Note: at least one court has already held under a disparate impact theory of discrimination that such policies violate Title VII because they disproportionately impact women because only women become pregnant; the Young case could theoretically be applied to such policies under a disparate treatment theory of discrimination, which is often easier for a plaintiff to prove.)
The bottom line is that the Young case is a fairly narrow opinion that won’t affect most employers. Most employers already accommodate pregnant employees, despite the contrary impression given by high profile pregnancy discrimination cases. In addition, the amended Americans with Disabilities Act requires employers to accommodate most pregnancy-related conditions, as do some state and local laws that mandate pregnancy accommodation. Employers who already provide temporary help to pregnant employees can keep doing what they are doing.
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