Time For A Pregnant Pause …

The Supreme Court Changes the Rules
on the Treatment of Pregnant Women in the Workplace 

 Michael G. Trachtman
Powell Trachtman Logan Carrle & Lombardo, P.C.
MEA General Counsel
mtrachtman@poweltrachtman.com

 As (hopefully) almost all employers know, the Americans with Disabilities Act, a federal law, requires employers to reasonably accommodate employees who have a “disability” – generally defined as a physical or emotional condition that could affect an employee’s ability to perform his or her job.  If, for example, an employee has a back problem and cannot perform certain physical aspects of a job, or is compromised by a sight or hearing issue, or needs extra breaks to take depression medications, the employer must make a substantial effort to accommodate those needs.
But how does that apply in the context of pregnancy?  Suppose you employ a pregnant woman who tells you that because of her pregnancy, she cannot lift more than 20 pounds, or she cannot stand more than 30 minutes at a time, or she needs a couple of extra bathroom breaks during the work day.  Do you have to accommodate those requests?
Surprisingly to many, under federal law, the answer has been no.  Since the inception of the ADA, federal law has provided that a normal pregnancy (as opposed to pregnancy-related complications) is not a disability and does not have to be accommodated.  Another federal law, the Pregnancy Discrimination Act, prohibits discrimination against pregnant women (or women who may become pregnant) in, for instance, hiring, firing, compensation, job assignment and other employment-related decisions, but federal law has not required employers to provide accommodations to women who cannot perform all of the essential function of their jobs because of pregnancy.
Last year, this aspect of workplace law – how are employers to treat women who cannot perform all aspects of their job because of a normal pregnancy – found its way to the Supreme Court.  On March 25, 2015, in a 6-3 ruling, the Supreme Court issued its decision in the much-anticipated case of Young v. UPS.

The Young v. UPS Case

Peggy Young was a part-time driver for UPS.  Her job required that she lift 70 pounds or more on a regular basis.  She became pregnant, she could not lift more than 20 pounds, and she presented UPS with a doctor’s note requesting a light duty assignment.
UPS denied her request.  Like many employers, UPS had a “pregnancy neutral” policy.  It provided accommodations, such as light duty assignments, for only three classes of workers: those injured on the job; those who lost their Department of Transportation driving certification; and those with a disability under the Americans with Disabilities Act.  Since Young could not perform the essential functions of her job, and since UPS had no obligation to treat her pregnancy as an ADA “disability,” UPS placed Young on an unpaid leave of absence during the remainder of her pregnancy.
Young sued, claiming that UPS unlawfully discriminated against her by refusing to accommodate her pregnancy.  The lower courts dismissed her case, finding that the UPS policy satisfied the longstanding rudiments of federal workplace law. Young appealed, the Supreme Court accepted her case, and it redefined the law — but not to the extent that many commentators had anticipated.
The Supreme Court did not rule that pregnancy should be considered a disability under the ADA.  Instead, the Court seized on a clause in the Pregnancy Discrimination Act:  “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 …”.
Based on that language, the Court ruled that if UPS provided light duty assignments to non-pregnant workers based on certain physical limitations, it had to provide light duty to all workers with similar physical limitations – including pregnant women, even though pregnancy is not a disability under the ADA. 
That’s good for pregnant women, so far as it goes.  But implicit in the Court’s decision is this:  under federal law, if an employer does not typically provide light duty assignments to workers, it will not have to provide light duty assignments to pregnant women.  The gist of the Court’s ruling was that pregnant women must be accommodated like other employees who have similar restrictions on their ability to perform their jobs – not that pregnant women must be accommodated in all instances.

A Crucial Exception

Under our system of government, states cannot pass laws that detract from federal laws, but they can pass laws that extend the reach and scope of federal laws.  In this context, very recently, New Jersey and Delaware have done just that:  they have both enacted laws that require employers to reasonably accommodate pregnancies, just like they are required to accommodate any other “disability.”  But Pennsylvania has not done the same – in Pennsylvania, pregnancy is not treated as a “disability,” and employers are governed by the ADA and the Pregnancy Discrimination Act as interpreted by the Supreme Court’s Young v. UPS decision.

The “Pregnant Pause” Take-Away

More than ever, pregnancy accommodation situations mean that employers will need to stop and think – take a literal “pregnant pause” – before they act.  Training of managers and supervisors will be crucial.
In New Jersey and Delaware, the reasonable accommodation/interactive dialogue requirements rule – pregnancy is always to be treated as a “disability” under the ADA.
In Pennsylvania, pregnancy does not have to be accommodated as a disability, but pregnant women must be accommodated to the same extent as other employees who have similar restrictions on their ability to do their jobs.
Until the Courts and the legislatures provide some further guidance, these will be particularly difficult waters to navigate.  Let us know if we can help.
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Michael G. Trachtman is MEA’s general counsel and the President of Powell Trachtman Logan Carrle & Lombardo P.C., a 30+ attorney King of Prussia-based law firm that has represented businesses and business people for over twenty-five years.  He can be contacted at mtrachtman@powelltrachtman.com.  See www.powelltrachtman.com for more information.