Pregnant woman The Supreme Courtheld that where a pregnant worker is denied light duty or otheraccommodation offered to a non-pregnant worker, the employer canjustify its treatment of the pregnant worker. (Photo:Shutterstock)

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Recently, the U.S. Equal Employment Opportunity Commission(EEOC) issued a press release announcing that a charge ofdiscrimination against United Parcel Service, Inc. (UPS), allegingfailure to accommodate in violation of the Pregnancy DiscriminationAct (PDA), settled for $2.25 million dollars. The settlementhighlights the EEOC's enforcement position that pregnant workers may be entitled toaccommodation under the PDA when they are limited by theirpregnancy in performing their regular job functions.

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The EEOC's settlement of its investigation of UPS isparticularly instructive for employers that maintain light dutypolicies.

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Related: Pregnancy accommodation missteps toavoid

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Prior to 2015, UPS maintained a policy of providing light dutyassignments to employees with job-related injuries, those who losttheir Department of Transportation (DOT) driver certifications, andthose with disabilities under the Americans with Disabilities Act(ADA). However, that policy did not allow for light duty work foremployees under any other circumstances.

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A UPS driver filed a charge with the EEOC, alleging that UPS'refusal to provide light duty and other accommodations to pregnantworkers violated the PDA, which amended Title VII of the CivilRights Act of 1964 and prohibits discrimination based on pregnancy.The charging party ultimately resolved her individual charge;however, the EEOC continued to investigate UPS' alleged denial ofaccommodation to other pregnant employees.

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The settlement agreement reached between the EEOC and UPSprovides payment to UPS employees who suffered monetary lossesunder the pre-2015 light duty policy as a result of not beinggranted light duty work during their pregnancies. The agreementalso requires UPS to consider other forms of accommodation inaddition to light duty when appropriate.

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According to the EEOC press release, the settlement agreementalso provides that UPS' accommodation obligations under the PDAapply to childbirth and related medical conditions.

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It should be noted that in 2015, the U.S. Supreme Courtaddressed UPS' pre-2015 light duty policy in the case of Young v.United Parcel Service, Inc. UPS argued that its policy was faciallyneutral towards pregnant workers because both pregnant andnon-pregnant workers were treated the same and subject to denial oflight duty if their work restrictions did not fall within theon-the-job injury, ADA, or DOT categories.

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However, Young argued—consistent with the EEOC's enforcementguidance at that time—that an employer must provide light duty toall pregnant workers who need it due to work restrictions resultingfrom pregnancy, even if the employer denies accommodation to othernon-pregnant employees whose work restrictions are not covered bythe policy.

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The Supreme Court effectively rejected both arguments. Instead,the Court held that where a pregnant worker is denied light duty orother accommodation offered to a non-pregnant worker, the employercan justify its treatment of the pregnant worker by articulating alegitimate, non-discriminatory reason for its policy. In order todemonstrate liability under the PDA, the pregnant worker must thenshow that the employer's articulated reason is a pretext forpregnancy discrimination. Such pretext might be demonstrated, forexample, where the employer's policy grants accommodation to alarge percentage of nonpregnant employees, but denies accommodationto a large percentage of pregnant employees.

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While the recent UPS settlement does not necessarily reflect anenforcement position which departs from the essential holding ofthe Supreme Court's decision in Young v. UPS, it does suggest thatthe EEOC will apply heightened scrutiny of any policy which limitsor denies accommodation of pregnant employees. Employers shouldcarefully review their light duty and other policies which offeraccommodations to employees who are unable to perform jobfunctions, and assess whether the denial of such accommodation topregnant employees (who do not otherwise meet the policies'criteria for eligibility) is based on legitimate,non-discriminatory reasons. As noted by the Supreme Court, suchreasons normally cannot be based solely on the cost of providingthe accommodation.

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Employers are encouraged to consult with legal counsel foradvice on compliance with the PDA and other applicable laws withregard to employee rights to accommodation.

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Robert Meyer is a partner at Poyner SpruillLLP. He represents employers in all aspects of labor andemployment, including litigation of cases before federal courts andadministrative agencies, and day-to-day advice andcounsel.


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