Tammy L. Baker and Kimberely R. Ward Jackson | Lewis

1. Jackson Lewis P.C. - Copyright 2015
Tammy L. Baker
bakert@jacksonlewis.com
Kimberly R. Ward
kimberly.ward@jacksonlewis.com

2. Jackson Lewis P.C. - Copyright 2015
What are We Going to Cover?
 Relevant Timeline
 PDA Basics
 Recent PDA Developments
– EEOC Guidance (July 2014 & June 2015)
– Young v. UPS (March 2015)
 What’s Next?
 Best Practices
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3. Jackson Lewis P.C. - Copyright 2015
Relevant Timeline
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1973
Rehab Act
1983
EEOC PDA
Compliance
2014 PDA
Guidance
1978
PDA
1990
ADA
2008
ADAAA
1993
FMLA
2015
Young v.
UPS

4. Jackson Lewis P.C. - Copyright 2015
PDA Basics
 Applies to employers with 15 or more employees
 Amended Title VII to prohibit sex discrimination on the basis
of pregnancy
 “The terms “because of sex” or “on the basis of sex” include,
but are not limited to, because of or on the basis of
pregnancy, childbirth, or related medical conditions”
 “Women affected by pregnancy, childbirth, or related
medical conditions shall be treated the same for all
employment-related purposes, including receipt of benefits
under fringe benefit programs, as other persons not so
affected but similar in their ability or inability to work”
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5. Jackson Lewis P.C. - Copyright 2015
Protected Classes Under PDA
 Current pregnancy.
 Past pregnancy.
 Potential or intended pregnancy:
– Reproductive risk;
– Intention to become pregnant;
– Fertility treatment;
– Use of contraception.
 Medical condition related to pregnancy or
childbirth:
– Lactation and breastfeeding;
– Abortion.
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6. Jackson Lewis P.C. - Copyright 2015
PDA Basics
 Generally, two types of claims under the PDA:
(1) Disparate Treatment: The employee is intentionally
subjected to adverse employment action or harassment
based on the employee’s pregnancy.
Example: discharge, demotion, harassment
(2) Disparate Impact: The employer has a policy or
practice which is neutral toward pregnant employees on
its face but in practice has a greater statistical impact on
the protected class (here, pregnant employees)
Example: minimum lifting/pushing/pulling requirement
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7. Jackson Lewis P.C. - Copyright 2015
PDA Basics
 In 1983, the EEOC issued PDA guidance in a chapter of its
Compliance Manual
– That guidance instructed that pregnant employees had no right to
“light duty” if the employer reserved light duty only for on-the-job
injuries
 For the next 30 years, the EEOC issued no comprehensive
update to this original guidance.
 Now, the PDA is a primary area of focus for the EEOC and a
hot bed for employment lawsuits.
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8. Jackson Lewis P.C. - Copyright 2015
Major PDA Developments
Since 2014
 July 2014: EEOC releases revised enforcement guidance on
pregnancy discrimination
• Pregnancy-related temporary impairments are
disabilities under ADA
• Lactation is a medical condition that must be
accommodated along with breastfeeding
• Prohibition on forced maternity leave
• Men should be afforded equitable maternity leave rights
to women
• Light duty may be a reasonable accommodation where
available, regardless of whether the employer has
reserved it for on-the-job injuries
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9. Jackson Lewis P.C. - Copyright 2015
Major PDA Developments
Since 2014
 March 25, 2015: U.S. Supreme Court decides Young v.
UPS
– Pregnant employee challenges denial of light duty as
disparate treatment under the PDA
 June 2015: EEOC revises enforcement guidance in light of
Young
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10. Jackson Lewis P.C. - Copyright 2015
Young v. UPS
135 S. Ct. 1338 (2015)
 In 2006 Young, a part-time UPS driver, became pregnant after suffering several
miscarriages. Her physician instructed her not to lift more than 20 pounds
during first 20 weeks of pregnancy and no more than 10 pounds thereafter.
 UPS required drivers to be able to lift parcels up to 70 pounds independently
and up to 150 pounds with assistance. UPS told Young she could not work
while under a lifting restriction and that she would have to take leave.
 Young stayed home without pay for most of time she was pregnant and
eventually lost medical coverage.
 Young filed suit, claiming UPS acted unlawfully by not accommodating her
lifting restrictions while accommodating other drivers who were “similar in their
… inability to work.”
 UPS claimed that their accommodation policy was neutral and was limited only
to employees who experienced on-the-job injuries; who had lost their DOT
certifications; or who suffered from an ADA-covered disability.
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11. Jackson Lewis P.C. - Copyright 2015
Young v. UPS
 Supreme Court rejected the EEOC’s view, holding that the
PDA does not require employers to grant pregnant workers
“an unconditional most-favored-nation status”
 “[D]isparate treatment law normally permits an employer
to implement policies that are not intended to harm
members of a protected class, even if their implementation
sometimes harms those members, as long as the employer
has a legitimate, nondiscriminatory, nonpretextual reason
for doing so.”
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12. Jackson Lewis P.C. - Copyright 2015
Supreme Court Rejects EEOC Guidance
 Concerns regarding the “timing, consistency and
thoroughness of consideration” severely limit the
EEOC guidance’s “special power to persuade.”
 The guidelines were not promulgated until after
the Court had granted certiorari in Young and are
inconsistent with positions for which the
government had long advocated.
 “Without further explanation, we cannot rely
significantly on the EEOC’s determination.”
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13. Jackson Lewis P.C. - Copyright 2015
Supreme Court Clarifies Disparate
Treatment Analysis Under the PDA
 Pregnancy discrimination is a form of sex/gender discrimination and the
McDonnell Douglas/Burdine framework applies.
 Employee must first establish prima facie case:
1. She belongs to the protected class (i.e. she is pregnant);
2. She sought accommodation;
3. The employer did not accommodate her; and
4. The employer did accommodate others “similar in their ability or
inability to work.”
 Employer must then provide a legitimate, nondiscriminatory explanation
for denying the accommodation.
– Expense or inconvenience in accommodating a pregnant employee on similar terms as a
non-pregnant employee normally is not a legitimate, non-discriminatory reason (compare to
the ADA, where expense may constitute a legitimate reason for offering a different
accommodation, or no accommodation at all)
 Employee must then establish an issue of material fact as to whether the
asserted reason is pretext.
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14. Jackson Lewis P.C. - Copyright 2015
Supreme Court Clarifies Disparate
Treatment Analysis Under the PDA
 Pretext may be established by presenting
– (1) significant evidence that a facially neutral policy
imposes a “significant burden” on pregnant employees
– (2) the employer’s legitimate, nondiscriminatory reasons
are not “sufficiently strong” to justify the burden
 Example: The employer accommodated a large
percentage of non-pregnant employees without
accommodating a large percentage of pregnant
employees
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15. Jackson Lewis P.C. - Copyright 2015
Supreme Court Clarifies Disparate
Treatment Analysis Under the PDA
 Young focused on comparators more than permissible leave
policies
 Is ability/inability to work the only relevant basis for
comparison? Must other similarities between pregnant
employees and “other persons” be considered?
 The PDA’s comparison of “other persons” does not mean
pregnant employees are entitled to the same
accommodation as any single other person who is similar in
ability or inability to work
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16. Jackson Lewis P.C. - Copyright 2015
Post-Young Events
 Case remanded back to Fourth Circuit Court of Appeals
– Supreme Court instructed that Young had established a prima
facie case because UPS had three categories of leave that
accommodated a large percentage of non-pregnant employees
but were unavailable to pregnant employees, thereby creating
material issue as to whether it treated non-pregnant
employees more favorably
 EEOC re-revised pregnancy guidance (June 2015)
– Reiterated its 2014 guidance while embracing the analysis set forth in
Young
 UPS and Young reached settlement (Sept. 2015)
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17. Jackson Lewis P.C. - Copyright 2015
Disparate Treatment Violations
of the PDA
 Employment decisions based on:
– assumptions or stereotypes regarding pregnant
employee.
– concerns regarding safety of unborn baby or future
fertility (except if BFOQ).
– risk that employee will take leave earlier than
anticipated.
– employee announces she is or intends to become
pregnant.
– employee’s decision to have or refrain from having an
abortion.
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18. Jackson Lewis P.C. - Copyright 2015
Examples of Disparate
Treatment Violations of the PDA
 Failing to provide nursing mothers to
address lactation-related needs
(expressing milk) as co-workers with
other limiting medical conditions.
 Penalizing women for taking time off
work for surgical impregnation.
 Permitting hostile work environment.
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19. Jackson Lewis P.C. - Copyright 2015
Benefits-Related Disparate Treatment
Violations of the PDA
 Failing to provide insurance coverage for abortion
if employee’s life is in danger - carried to term or
abortion complications.
 Excluding insurance coverage for particular
fertility treatments.
 Failing to provide prescription contraceptives, if
plan covers other prescription drugs.
 Failing to credit medical leave the same re:
service time for pension plans.
 Adverse action to avoid insurance costs re:
pregnancy-related impairment of the employee or
child.
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21. Jackson Lewis P.C. - Copyright 2015
Potential Disparate Impact
Violations
 Leave/attendance policy with caps or
eligibility requirements with disparate
impact on pregnant employees.
 Limits on light-duty assignments.
 Lifting requirements.
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23. Jackson Lewis P.C. - Copyright 2015
Reasonable Accommodation
Obligation under the PDA?
 Although pregnancy itself is not an impairment within
the meaning of the ADA, some pregnant workers may
have impairments related to their pregnancies that
qualify as disabilities under the ADA.
 A pregnant employee may be entitled to reasonable
accommodation under the ADA for limitations
resulting from pregnancy related conditions.
 An impairment’s cause is not relevant in determining
whether the impairment is a disability.
 Distinctions based on the source of the inability
(source discrimination) is pregnancy discrimination.
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24. Jackson Lewis P.C. - Copyright 2015
These Conditions May Be Disabilities
 Disorders of the uterus and cervix.
 Multiple combined physiological impairments.
 Anemia.
 Gestational diabetes.
 Nausea causing severe dehydration.
 Abnormal heart rhythms.
 Depression affecting brain function.
 Common conditions - back pain, leg swelling, and
carpal tunnel.
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25. Jackson Lewis P.C. - Copyright 2015
Super-Protected Class?
Example - Employer Does Not Provide Equal Access to
Light Duty
“An employer has a policy or practice of providing light duty,
subject to availability, for any employee who cannot perform
one or more job duties for up to 90 days due to an injury,
illness, or a condition that would be a disability under the
ADA. An employee requests a light duty assignment for a 20-
pound lifting restriction related to her pregnancy. The
employer denies the light duty request, claiming that
pregnancy itself does not constitute an injury, illness, or
disability and that the employee has not provided any
evidence that the restriction is the result of a pregnancy-
related impairment that constitutes a disability under the ADA.
The employer has violated the PDA because the employer’s
policy treats pregnant employees differently from other
employees similar in their ability or inability to work.”
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26. Jackson Lewis P.C. - Copyright 2015
Light Duty for Pregnant Employees?
 Light duty policies limited to WC or disabled
employees violate the PDA.
 Caps on the number or duration of light duty
jobs OK if consistently applied & do not
impose a disparate impact on pregnant
employees.
 Other prerequisites (written request) for light
duty are OK.
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27. Jackson Lewis P.C. - Copyright 2015
EEOC’s Suggested ADA
Accommodations (if provided to others)
 More frequent breaks.
 Water bottle at workstation.
 Sitting stools.
 Modified work schedule/shift.
 Modify/eliminate non-essential duties
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28. Jackson Lewis P.C. - Copyright 2015
EEOC’s Other ADAAA Suggested
Accommodations (if provided to others)
 Additional leave – (familiar?)
 Telecommuting.
 Leaves of absence like those provided to
disabled or injured workers.
 Hold jobs like those for employees on sick
leave, STD, LTD.
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29. Jackson Lewis P.C. - Copyright 2015
Questions Remain
 What deference will be given to the EEOC’s latest
pregnancy guidance?
 Are disparate impact claims viable under the
PDA?
 Does the ADA(AA) reasonable accommodation
analysis and obligations apply to pregnancy-
based accommodations?
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30. Jackson Lewis P.C. - Copyright 2015
State Expansion of Pregnancy Rights
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• 25 states have laws that expand upon FMLA
• 14 states and D.C. have lowered FMLA’s 50-employee threshold to as
low as 10 employees
• Seven more states and D.C. have enacted laws allowing for more
generous maternity leave lengths
• CA, NJ, and WA require some form of paid leave
• AK, NY, and RI still consider pregnancy a temporary disability eligible for
paid benefits under disability insurance laws
• 12 states, D.C. and some local governments have laws treating
pregnancy as a disability, subject to reasonable accommodation absent
undue hardship
• AK, CA, CT, DE, HI, IA, IL, LA, MD, MN, NE, NJ

31. Jackson Lewis P.C. - Copyright 2015
Is Federal Legislation Coming?
 Pregnant Workers Fairness Act
– Originally introduced in 2012 & 2013; failed
– Reintroduced June 2015; currently in committee
– Modeled on the ADA
– Requires employers to make reasonable accommodations for
pregnant workers
– Prevents employers from forcing women out on leave when
another reasonable accommodation would allow them to
continue working
– Prohibits employers from denying employment opportunities to
women based on their need for reasonable accommodation
related to pregnancy, childbirth or related medical conditions
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32. Jackson Lewis P.C. - Copyright 2015
EEOC’s Recommended Best
Practices: General
 Discrimination/harassment policy.
 Train managers.
 Employee surveys and review employment
policies to identify impediments.
 Investigate all complaints.
 Don’t Retaliate.
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33. Jackson Lewis P.C. - Copyright 2015
Practical Solutions
 Treat pregnant employees the same as you treat
disabled employees, or others similar in ability to
work.
 Update light duty policy if…
 Review attendance, leave (caps?), lifting policies
or job requirements that might impact pregnant
employees.
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34. Jackson Lewis P.C. - Copyright 2015
Practical Solutions
 Add pregnancy and breastfeeding/lactation to
your harassment and discrimination policies.
 Update accommodation policies. Will EEOC
and DOL expect you to have a detailed
accommodation policies and procedures?
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