Some legal analysts believe that the Fourth Circuit Court of Appeals is moving from the far right towards the middle of the ideological spectrum. That maybe so, but middle of the road may be as far as it goes, at least as suggested by a recent opinion adopting a narrow view of employee rights under the Pregnancy Discrimination Act in Young v United Parcel Service Inc.pdf.
The Bottom Line
If you are not interested in the inside baseball of the legal analysis of this case, and just want to know your rights, here is the bottom line: your employer does not have to provide a pregnant employee a light-duty assignment unless those assignments are offered to employees injured "off the job." For instance, if your employer requires that employees be able to life 70 pounds to perform the job, and your doctor say you can only life 25 pounds during your pregnancy, your employer can remove you from your job as long as it enforces this same rule for all employees also injured off the job. (I find it a bit strange to consider pregnancy as an "off the job injury." This puts pregnancy in the same category as a back injury. Certainly an employee can injury his back on the job or off. But how many people become pregnant at their job?) This is important because many large employers only allow for light-duty job assignments for employees injured on the job. They do this primarily to save on worker's compensation costs.
Note, however, that the employer must actually stick to its policy. If the employer policy is to provide light-duty assignents for on-the job injury, but in practice it provides such assignments to some injured off the job, then a pregnant employee is entitled to the same treatment, regardless of what the policy says.
Finding out what your employer's practice actually is may be difficult. So, as I always advise, see your friendly neighborhood employent lawyer to find out if your employer is unlawfully discriminating against you.
Now back to the sausage making. In Young, United Parcel Service would not allow the employee, Peggy Young, to work because her medical providers said that she could not lift more than 25 pounds while pregnant. UPS did so, it said, because her job required her to lift at least 70 pounds. (There was some dispute about whether someone in her job had to, in fact, lift that amount. But parties did not disagree that this was the policy.) It was also UPS policy to grant light duty job assignments to those injured on the job. UPS characterized pregnancy as an off-the job "injury." Parties did not dispute that UPS enforced this policy. The Young court had to decide if this was illegal under the Pregnancy Discrimination Act.
The Pregnancy Discrimination Act
Congress passed the Pregnancy Discrimination Act (PDA) in 1978. The Act amended Title VII of the Civil Rights Act to include pregnancy in the definition of discrimination based on sex. The language is below:
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; and 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....
Applying the PDA in Young
The dispute in Young (at least on this issue) was how to interpret the second clause, which states that a pregnant woman cannot be treated differently than those similar in their inability to work. Young argued that the meaning was unambiguous - the Act prohibits treating pregnant woman differently that those with short-term restrictions on the ability to work. By this argument, an employer could not provide light duty assignments to those injured on the job, while denying to those assignments to pregnant women. They are both similar in their inability to work. The Sixth Circuit agreed with this argument in Ensley-Gaines v. Runyon, 100 F.3d 1220, 1226 (6th Cir.1996).
UPS argued that the first clause of that section placed pregnancy discrimination in the definition of sex discrimination. And courts have long held that an employer does not violate the law just because it has a policy that negatively affects a particular woman, provided that a man would be similarly treated. That is, an employer cannot apply a policy that makes a distinction based on sex or pregnancy. But as long as the employer is making an employment decision based on a neutral factor, like on versus off-the-job injury, that distinction (at least on this facts) is legal even if it happens to negatively affect a pregnant woman.
The court here sided with UPS, finding that the second clause only made sense when read in conjunction with the first - meaning that UPS could have a policy under which a pregnant woman is denied light duty provided that all employees injured off the job are also denied. The court reasoned as follows:
Interpreting the PDA in the manner Young and the ACLU urge would require employers to provide, for example, accommodation or light duty work to a pregnant worker whose restrictions arise from her (off-the-job) pregnancy while denying any such accommodation to an employee unable to lift as a result of an off-the-job injury or illness. Under this interpretation, a pregnant worker who, like Young, was placed under a lifting restriction by her healthcare provider and could not work could claim that the PDA requires that she receive whatever accommodation or benefits are accorded to an individual accommodated under the ADA, because the pregnant worker and the other individual are similar in their ability or inability to work-- i.e., they both cannot work. By contrast, a temporary lifting restriction placed on an employee who injured his back while picking up his infant child or on an employee whose lifting limitation arose from her off-the-job work as a volunteer firefighter would be ineligible for any accommodation. Such an interpretation does not accord with Congress's intent in enacting the PDA
While I disagree with the court's reasoning, it is for now the law of the land in the Fourth Circuit. Attorneys for Ms. Young have requested that the Supreme Court hear the case. Stay tuned.