Accommodation under the Pregnancy Discrimination Act after Young v. UPS

Employers that provide accommodations to nonpregnant employees are required to provide similar accommodations to pregnant employees who have similar limitations on their ability to work, unless the employer has a strong legitimate and nondiscriminatory reason for treating the nonpregnant employees differently.

When do pregnant and nonpregnant employees have similar work limitations that require similar accommodations?

The relevant issue is the employees’ ability to work. Examples of physical limitations that affect employees’ ability to work include lifting restrictions, limits on the time spent standing, inability to move certain equipment, and the need for frequent breaks. It doesn’t matter why or how the physical limitation arose, so distinctions between on-the-job and off-the-job injuries generally will not be relevant. If an employer accommodates the physical limitations of nonpregnant employees, it must also accommodate the physical limitations of pregnant employees unless it has a strong, legitimate reason for not doing so.

Employers generally must provide similar accommodations to pregnant employees unless the employer’s legitimate reason for refusing to provide accommodations is strong enough to outweigh the burden placed on the pregnant employees by the failure to accommodate. The burden on pregnant employees will frequently be heavy because nonaccommodation usually means that an employee will be required to take unpaid leave and may lose her job, among other things.  It can be difficult to know with certainty when an employer has a sufficiently strong legitimate reason, but there are guidelines that may be helpful:

• Reasons based on the cost or inconvenience of accommodating pregnant women will rarely be sufficiently strong to pass legal muster.
• Employers that provide accommodations to a large percentage of nonpregnant employees but do not accommodate pregnant employees will have a hard time showing that their reasons are strong, legitimate and nondiscriminatory.

The following examples illustrate how to weigh the burden of nonaccommodation on the pregnant employee and the employer’s reason for not accommodating her:

• An employer that provides light duty to employees who are injured on the job will almost always have to provide light duty to pregnant employees as well because the fact that the employer has a policy of accommodating (or in practice accommodates) a large percentage of employees is evidence that it does not have a legitimate, nondiscriminatory reason for failing to also accommodate pregnant employees.
• An employer allows a man with a bad back to come to work late to reduce the amount of time he must sit in rush hour traffic but refuses to let a pregnant woman with morning sickness come to work late, and says that its reason for treating the employees differently is that that it would cost too much or be too inconvenient to have two staff members arrive late to work.  The employer’s reason for the refusal is likely not strong enough to justify the different treatment.
• Assume the same set of facts, but the employer says that its reason for treating the employees differently is that the man works at home in the morning during rush hour and the pregnant woman has a job that requires her to be on site to work. That reason may not be sufficiently strong to justify the different treatment if the woman’s job can be done by starting later and ending the day later.
• Assume the same set of facts, but the employer says that its reason for treating the employees differently is that the man has a unique position in the company as the inventor of the company’s main product and the company will provide him with flexibility so that he can be present in the workplace to the extent possible, and the woman is an entry-level receptionist who was hired with the understanding that her hours were not flexible because she must answer the phones and greet guests in person during business hours. The employer’s reason may be strong, legitimate, and nondiscriminatory, meaning that its different treatment of the pregnant woman would be legal.