Time & Attendance
By Jon Hyman
Dec. 4, 2014
Yesterday, the Supreme Court heard oral argument in Young v. UPS, which will decide whether Title VII requires an employer to accommodate pregnant workers the same as non-pregnant workers similar in their inability to work.
UPS required Peggy Young to be able to lift up to 70 pounds as part of her job as a package delivery driver. After she became pregnant, her doctor limited her lifting. Young requested that UPS move her to a light duty assignment. UPS’s collective bargaining agreement allowed an employee to work a light duty assignment only because of an “on-the job” injury or when “disabled” under the Americans with Disabilities Act. Because Young did not meet either of these categories UPS denied her request.
Young’s lawsuit argued that UPS violated Title VII because the Pregnancy Discrimination Act required UPS to provide her with a “reasonable accommodation” to the same degree it accommodated a disabled employee. The 4th Circuit disagreed, finding that UPS’s policies did not treat pregnant workers less favorably, but the same as any other worker who did not meet the specific requirements for light duty under the CBA.
The case may hinge on where the justices fall on the right comparator for UPS’s pregnant workers. Is it those employees who are ADA-disabled or otherwise injured on-the-job, whom UPS accommodates, or those non-ADA employees injured off-the-job, whom UPS does not accommodate.
As one would expect, the Justices appear to be split down ideological (maybe gender) lines, and, as is often the case, Justice Kennedy may be the key that will unlock this issue. He, however, was relatively quiet during the argument, only asking a handful of questions, which failed to shed any light on his thought process. Truth be told, it was a very curious argument, and the case, at least based on the Justice’s queries, is not easily predictable.
I am hopeful that the court will side with working parents and rule in favor of the employee in this case. A ruling for UPS would, I fear, promote the unequal treatment of pregnant workers, which is anathema to the spirit, if not the letter, of the Pregnancy Discrimination Act. No employer should be allowed to act as if it is exempt from the law.
A PDF of the compete oral argument transcript is available here.
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