February 12, 2013

Developments in pregnancy discrimination law

Posted in Employment Law by Gene Killian |

Imagine that you run a company that delivers parcels – often heavy parcels.  Imagine further that, to be a driver at your company, a person must be able to lift 75 pounds, and be capable of assisting in lifting packages of 150 pounds.  Now imagine that one of your drivers becomes pregnant.  You worry that, if you leave her on the job, something could happen with the pregnancy.  You also worry that, if you take her off the job, you could face a discrimination lawsuit.  What do you do?

That was the situation faced by United Parcel Service in the recent Fourth Circuit case of Young v. UPS, which you can read in full by clicking here.  Peggy Young was a driver for the company.  In July 2006, following two unsuccessful rounds of in vitro fertilization, she requested leave to try a third time, which was granted.  This time, she was successful.  The problem was that her doctor prepared a note stating that she should not lift more than 20 pounds during that first 20 weeks of her pregnancy, and not more than 10 pounds for the remainder.  Later, a midwife also prepared a note recommending that Young not lift more than 20 pounds during her pregnancy. UPS told her that she could not continue working for the company under those conditions.  Young argued that the 75 pound lifting requirement was “illusory,” because she seldom had to lift such heavy items, and on the rare occasions that she did, she would use a hand truck or simply ask for help from another UPS employee.  The company disagreed.

The UPS occupational health manager, Carolyn Martin, told Young that (1) UPS offered light duty only for those employees with on-the-job injuries, those accommodated under the ADA, and those who had lost their DOT driving certification – but not for pregnant employees; (2) Young did not qualify for short-term disability benefits because she had not presented evidence that she could not work at all; (3) Young had already exhausted her FMLA leave; and (4) in light of the 20-pound lifting restriction, UPS policy did not permit Young to continue working as a driver.

Naturally, this being America, litigation followed, and in this case, Young was supported by amicus efforts from the ACLU and various women’s rights groups.

In her suit, Young argued that, under the ADA, UPS should have engaged in an “interactive process” to determine whether Young was capable of performing her job.  The Court rejected that contention, writing:  “Although the ADA does advise an employer to initiate ‘an informal, interactive process’ when determining whether an individual with a disability needs an accommodation, see 29 C.F.R. §1630.2(o)(3), no such counsel applies to the determination of whether an employee is disabled in the first instance.  Young presents no rationale, compelling or otherwise, for concluding that an employer acts inappropriately in relying on the employee’s own objective medical evidence.”  (Emphasis added.)   

As to Young’s argument that UPS had “improperly rel[ied] on a mistaken belief about Young’s capacity for work,” the Court wrote:  “The most the record establishes is that Martin believed Young to be pregnant and under a temporary lifting restriction on account of her pregnancy, based on the evidence Young herself provided.  Given the relatively manageable weight restriction – twenty pounds – and the short duration of the restriction, there is no evidence that Young’s pregnancy or her attendant lifting limitation constituted a disability within the meaning of the ADA.”  (Note:  UPS gave Young her job back after she delivered the baby.)

Young also brought claims under the Pregnancy Discrimination Act, a 1978 law which includes pregnancy-related discrimination to Title VII’s general prohibition on sex discrimination.  But the Court held that UPS had not discriminated against pregnant employees; it had simply treated pregnant workers and nonpregnant workers alike, and recognized that pregnancy, without more, is not a disability under the law.  The Court quoted the Seventh Circuit’s decision in Troupe v. May Dep’t Stores, 20 F.3d 734, 738 (7th Cir. 1994):  “The Pregnancy Discrimination Act does not, despite the urgings of feminist scholars…require employers to offer maternity leave or take other steps to make it easier for pregnant women to work.  Employers can treat pregnant women as badly as they treat similarly affected but nonpregnant employees.”  (Wow, that’s a harsh way of looking at life…)

Where does this leave us?  First, the Fourth Circuit’s decision was an affirmance of a summary judgment ruling in favor of UPS.  Had this case gone to a jury, it’s difficult to say whether or not the jurors would have found that UPS’s assuredly objective decision was simply a “pretext” for pregnancy discrimination.  If the employer can’t get summary judgment, the stakes increase – so, employers, don’t fall in love with your story.  Second, and on a related point, the problem with much of employment law is that there’s no bright line rule.  A New Jersey state court judge looking at these same facts, for example, could have concluded that an issue of fact existed and that the matter should go to a jury (i.e., the easy way out).  Third, the case points out the need for management to stay “objective” (and to document its objective decisions) when dealing with possible discrimination issues.  Although there was evidence that a member of UPS management had made a disparaging remark about pregnant employees, the record as a whole showed an objective reason for UPS’s employment decision – which was based on notes from the employee’s own doctor.

– Gene Killian