United States: The New And Evolving Standard For Accommodating Pregnant Employees

Last Updated: December 8 2016
Article by Edward F. Harold

When the U.S. Supreme Court issued a March 2015 decision creating a new standard for how employers should accommodate pregnant employees, retailers took notice. After all, approximately 50% of retail employees are female, and in some retail lines such as clothing, women make up more than 75% of the workforce. Pregnancy is a common occurrence in the industry, and employers want to know how to comply with the law.

But the decision seems to have raised more questions than it answered. There remains confusion among employers about the law, who often receive mixed messages from different sources on how to comply with the new Supreme Court standard. Now, with the benefit of almost two years of lower court decisions, retailers stand on much more solid ground in knowing how best to work with their pregnant employees.

Background: New Standard Created By The SCOTUS

The Pregnancy Discrimination Act contains a provision unique in employment law. It requires employers to treat women affected by pregnancy, childbirth, or related medical conditions "the same for all employment-related purposes ... as other persons not so affected but similar in their ability or inability to work." For many years, courts routinely held that employers were not required to provide transitional or light duty work to pregnant employees as long as they limited their light duty program to employees who suffered on-the-job injuries.

All that changed when the Supreme Court rejected this bright line rule in the 2015 case of Young v. United Parcel Service. Instead of a bright line, the SCOTUS concluded that denying light duty accommodations to pregnant employees while providing them to others could be illegal. The standard created by the Court to make this determination: an employer would be found in violation of the law if its refusal placed an undue burden on pregnant employees that could not be justified by legitimate reasons. Additionally, the SCOTUS said that cost would not ordinarily constitute a legitimate reason.

This Supreme Court test is, like the Pregnancy Discrimination Act's requirements, unique. There is no prior workplace law utilizing a similar standard, leaving employers with several critical questions. What constitutes an "undue" burden on pregnant employees? If cost is not a legitimate reason, what is? And most importantly, must a workers' compensation light duty program extend to pregnant employees who have pregnancy-related restrictions?

Retailers Puzzled By New Standard

In the immediate aftermath of this decision, many advisors told employers they should either open their workers' compensation light duty programs to pregnant employees, or eliminate the programs entirely. But this advice is not easy to follow in the retail industry.

Retail employees often have physical jobs that require them to perform functions such as scanning products at the register, squatting and bending to pick up objects, climbing to stock shelves, and carrying heavy objects for customers. Many stores have limited staff with no backup available to handle tasks that another employee cannot perform. Allowing employees to do less than their full jobs to accommodate physical restrictions creates real in-store difficulties.

But the physical nature of the job means that there will be on-the-job injuries no matter how well you implement your safety program. When employees are injured, the likelihood of their fully recovering to their pre-injury physical abilities is increased dramatically if they return to work quickly. A swift return to work also reduces the cost of claims, making these light duty and transitional programs rightly important.

But opening up these programs to employees with pregnancy-related physical limitations will unquestionably increase costs, especially because about 10% of pregnancies result in physical limitations. The additional costs a retailer would incur to accommodate all pregnancy-related restrictions would be high. Thus, the common advice provided to retailers – "if you accommodate anyone with non-pregnancy-related limitations, you should accommodate all pregnancy-related limitations" – ignited a difficult cost-benefit analysis.

Courts Provide Guidance On 3 Main Issues

Employers were hopeful that as pregnancy discrimination cases wound through the court systems in the wake of the SCOTUS decision, judges would provide answers to their questions. These decisions have now finally started coming and are beginning to shape the law. In a nutshell, the developing trend favors the rights of pregnant employees over the rights of employers.

Issue No. 1 – Inconsistent Treatment

The first hurdle an employee must pass to maintain a pregnancy discrimination claim is to show that she asked for accommodations, her employer denied them, and that the employer provided accommodations to non-pregnant individuals with similar limitations. The courts have made this hurdle very simple for plaintiffs to overcome.

An employee can prove she requested an accommodation simply by showing that she notified her employer that pregnancy-related limitations interfered with her job. The request does not have to arise directly out of a pregnancy, and could also arise from a pregnancy-related complication such as a lactation issue. For example, a court recently held that a female police officer who was unable to wear a bulletproof vest due to lactation concerns satisfied the accommodation standard when she requested a desk job.

At this juncture, the courts will not consider the reasonableness of the requested accommodation, or the impact of the requested accommodation on the workplace. If an employer accommodated an employee's limitations arising from a workplace injury but did not accommodate the plaintiff's similar limitations, the plaintiff would be found to have carried her burden.

In another recent case, a district court accepted as comparators two other pregnant women who were allegedly treated "better" than the plaintiff. This makes little logical sense, as it would seem that no inference of discrimination could be derived from demonstrating differing treatment among members of the same protected class. But this case demonstrates how hostile some courts are to perceived unfair treatment of pregnant employees.

Issue No. 2 – Legitimate Reasons

Once the employee clears this hurdle, the employer must explain its reasoning for denying the requested accommodation if it hopes to win the legal claim. Perhaps the most troubling aspect of the Young decision was the statement that financial cost, a motivator in almost every business decision, would not ordinarily be considered a legitimate justification for rejecting the accommodation.

Unfortunately, few cases have directly addressed what qualifies as a legitimate reason. In one, the court ruled that a statutory mandate that required a police department to continue the employment of any officer injured in the line of duty need not extend to pregnant police officers. In another, it was deemed sufficient when a government agency lacked funds to spend for the requested accommodation (maternity uniforms).

Retailers should understand that they might run into legal trouble if they simply state that the refusal to accommodate a pregnant employee is based on the fact that their light duty program is being limited to employees injured on the job. Given recent decisions, this will likely not be enough to survive a pregnancy discrimination claim.

Issue No. 3 – Comparator Analysis

The final step in the analysis requires the plaintiff to show that the employer has accommodated a large percentage of non-pregnant employees but denied accommodations for a high percentage of pregnant employees, and that whatever legitimate reason provided for the accommodation denial is not sufficient. This step does not require the employee to prove that an employer has denied an accommodation to several pregnant employees.

As one court explained, if the employer only had two pregnant employees and denied an accommodation to both, it has denied 100% of the pregnant employees' requests for accommodation. More troubling is a recent case from the 2nd Circuit Court of Appeals, where the court concluded that an employer's policy of providing light duty work to employees injured on the job but not to pregnant employees was sufficient evidence for the plaintiff to be able to proceed to a jury trial.

Conclusion: What Should Retailers Do?

One of the main takeaways from these cases is that judicial hostility toward employers who refuse to provide light duty accommodations to pregnant employees is real. As one district judge recently noted, "no pregnant woman should, in 2016, be fired for being unable to lift more than 30 pounds." These cases are consistent with the national mood, as a paid maternity leave law has been proposed and supported to a certain extent by Republicans and Democrats alike.

Retailers that limit accommodations of temporary impairments to employees injured on the job need to examine how they would defend against a pregnancy discrimination claim. If you plan to ask a jury to agree that excluding pregnant women from your light duty program is justified, you need to articulate your reasons in a way that a jury can understand and agree with.

If members of the jury learn that these reasons were first articulated only after a lawsuit was filed, chances they will accept them are slight. So it behooves any retailer in this position to make a decision about the scope of its light duty program and, if that decision is to continue the limitation, clearly articulate rationales for the decision that amount to something more than money.

Finally, the law in this area is certainly less than well-settled. While the Young decision does not necessarily mandate that pregnant women be included in any light duty program, you should be prepared for inevitable litigation if you limit light duty to employees injured on the job. You should be committed to fighting for a favorable decision, but be warned: it will not be easy.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Edward F. Harold
Similar Articles
Relevancy Powered by MondaqAI
Fisher Phillips LLP
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Fisher Phillips LLP
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions