You already know that you’re supposed to accommodate pregnant employees if they ask for it. Now the U.S. Supreme Court has just stressed — and clarified — that point in an important decision you should pay attention to.
The decision was issued in the case of a UPS driver from Landover, MD, Peggy Young, who had sued the company for pregnancy discrimination. Ms. Young said she was denied a light-duty accommodation for her pregnancy.
Waxing Solomonic, the Supreme Court cut the baby in half (if you’ll permit the reference in this case!). First, on the side of employees, the court said the Pregnancy Discrimination Act (PDA) does in fact give pregnant employees a right to legal action if they can show they were intentionally denied accommodations because of their pregnancy.
On the side of employers, however, the court added that the PDA doesn’t mean pregnant employees can demand the exact same accommodation as any other employee with similar restrictions. In other words, a pregnant employee who can’t lift more than 20 pounds because of her condition can request an accommodation, but she can’t point to another worker with the same lifting restriction who has temporarily been reassigned to an office job, and claim she has the right to that same kind of job. You could legally accommodate her in some other way, as long as the accommodation is reasonable.
What they have to prove
The court said that to be successful when suing for failure to accommodate, a PDA plaintiff has to provide evidence that:
- She is protected by the PDA, meaning that she is, was or can become pregnant;
- She asked to be accommodated when she was unable to do her normal job;
- The employer refused to accommodate her; and
- The employer provided accommodations for others who were temporarily just as unable to do their work.
The employer can then try to show that its light-duty policy had a neutral, acceptable business rationale, and the employee subsequently seek to discredit that “neutral” reason with evidence that it was merely a pretext for bias.
What you should do
That’s the legal formula. But what does it mean to you in terms of policy and employee training?
Experts at the Center for WorkLife Law at the University of California, Berkeley, suggest that you:
- Make sure your light duty accommodation policies that apply to some categories of employees, such as those with on-the-job injuries, apply also to pregnant women;
- Review other policies — like leave, scheduling and attendance — to ensure compliance with the accommodation provisions of the PDA, and also those of the Americans With Disabilities Act (ADA) that relate to pregnancy. Policies and procedures should cover accommodations on the basis of pregnancy, childbirth and related medical conditions, including lactation;
- Establish procedures for determining what accommodations are necessary and appropriate;
- Train supervisors to respond properly to pregnant employees’ need for accommodation.
Remember any local laws
Also, don’t forget that if the state(s) or localities where you operate have laws protecting pregnant employees, these take precedence over the PDA if they’re more favorable to employees. So make sure your policies reflect this state of affairs.
We’ll keep an eye on the lower courts as they start applying the new Supreme Court decision, and let you know how the legal landscape vis-a-vis PDA (and ADA) accommodation is shaping up.
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