The reaction to yesterday’s Supreme Court decision to revive a pregnancy-discrimination lawsuit against United Parcel Service has been decidedly swift and, of course, decidedly mixed.
The Supremes based yesterday’s decision on the belief that lower courts had used the wrong standard to determine whether the company had discriminated against one of its drivers, according to the New York Times.
When Peggy Young’s doctor recommended that she avoid lifting anything heavy after she became pregnant, the company refused to give her lighter duties to accommodate her and placed her on unpaid leave, according to the 2006 lawsuit.
(UPS has since changed its policy to offer light duty to pregnant women, the Times reports.)
Barry Hartstein, co-chair of Littler’s EEO and diversity practice in Chicago, says “the Court essentially treated pregnancy under the classic disparate treatment theory, finding that discrimination can be inferred by certain employer conduct.”
Meanwhile, Katherine Kimpel, managing partner of Sanford Heisler Kimpel in Washington and co-author of an amicus brief in support of Ms. Young for medical providers and organizations involved in female and infant health and for the National Partnership for Women and Families, says the decision was more than just a victory for Young, who accused the delivery company of violating the federal Pregnancy Discrimination Act:
“The Supreme Court today handed a victory not only to Ms. Young but also to all pregnant women and mothers working in this country. Ms. Young will have her day in court. UPS does not get to subject women to a least-favored-nation status. Other employers should be on notice. The Supreme Court makes clear that the Pregnancy Discrimination Act has teeth. Employers who accommodate everyone but pregnant workers will be held accountable.”
Meanwhile, Michael Droke, a Seattle-based partner in the labor and employment practice at the international law firm Dorsey & Whitney, calls the 5-4 decision a “fractured” one, adding that the Court “noted that the expansions to the Americans with Disabilities Act definitions of ‘disability’ might require companies to accommodate employees with temporary lifting restrictions, separate from the Pregnancy Discrimination Act.”
He says employers should beware that federal law, either under the ADA or Pregnancy Discrimination Act, protects disabled employees from discrimination and, in some cases, require reasonable accommodation.
“The Court refused to grant pregnant employees, in the Court’s words, a ‘most favored nations’ status,” he says. “In other words, an employer is not automatically required to give pregnant workers the same accommodations they would offer to others with temporary disabilities.
However, he adds, the Supreme Court required UPS to justify its treatment by establishing a legitimate, non-discriminatory reason for the difference.
“This may prove a very difficult burden for most employers to meet,” he says. “Employers must be very careful when granting leave requests or making job accommodations, because the Company might later be required to justify any difference in treatment for other employees.”