Jan 05, 2015

What HR can look forward to in 2015!

By: Paul Ebeltoft

UPS or OOPS?

HR professionals have undoubtedly heard of Young v. United Parcel Service, Inc. As a refresher, here is the “Cliff Notes” version.

Peggy Young started working as a driver for UPS in 2006. In 2007, Young underwent in vitro fertilization and became pregnant. Her doctor recommended that she not lift packages heavier than 20 pounds while working. Even though Young claimed that her UPS job dealt almost exclusively with overnight letters, UPS said that its drivers must be able to lift packages weighing up to 70 pounds. Young was unable to fulfill this work requirement and, since she had used all of her available FMLA leave, she was forced to take unpaid leave during which time she lost her medical coverage.

Young sued UPS claiming that UPS violated the Americans with Disabilities Act and the Pregnancy Discrimination Act. Her suit alleged that UPS allowed employees injured on the job or who had “traditional” disabilities qualifying for an ADA accommodation or who had lost their commercial driving privileges were transferred to light duty work. UPS claimed that it had no obligation to offer Young an accommodation under the Americans with Disabilities Act because Young’s pregnancy did not constitute a disability.

What is the question?

Both the trial court and the Federal Fourth Circuit Court of Appeals agreed with UPS and dismissed Young’s claim. The United States Supreme Court accepted the case, however, and it was argued, with much fanfare among the HR community, on December 3, 2014. 2015 will bring the Supreme Court’s answer to the question of whether the Pregnancy Discrimination Act requires an employer to provide the same work accommodations to an employee with pregnancy-related work limitations as to employees with similar, but non-pregnancy related, work limitations.

Why is this important?

In 2012, the most recent year for which comprehensive information is available, 62 percent of the women giving birth were already in the labor force. Extrapolating from this information, that’s about 2.5 million working women each year who are potentially in the same situation as Peggy Young found herself. HR needs to know exactly how far the Pregnancy Discrimination Act will go to protect these workers.

Wasn’t the question about light duty already answered?

In my August 2014 article, Does the North Dakota baby boom affect you? I wrote that the Equal Employment Opportunity Commission (EEOC) had just issued guidance about the Pregnancy Discrimination Act. In July, the EEOC advised employers that they have an obligation to provide light duty for pregnant workers on the same terms and conditions that light duty is provided to employees who are injured on the job with a resulting ability or inability to work similar to the pregnant worker’s. My August column did not tell the whole story.

First, the EEOC guidance, while important, is advisory only. Second, several courts, as in the Young lower courts’ decisions, have disagreed with the EEOC. Even one of the EEOC commissioners, a woman, opined that the guidance was flawed. Thus, the Supreme Court has weighed in and soon we will all know the final answer.

Predicting the outcome?

A Washington Associated Press news article recorded the following about the December 3, 2014 Supreme Court oral argument.

“With some of their male colleagues unusually quiet, Justices Ruth Bader Ginsburg and Elena Kagan repeatedly pressed UPS lawyer Caitlin Halligan over the Atlanta-based package delivery company's refusal to find a temporary assignment for Young.

The anti-discrimination law ‘was supposed to be about removing stereotypes of pregnant women as marginal workers. It was supposed to be about ensuring that they wouldn't be unfairly excluded from the workplace. And what you are saying is that there's a policy that accommodates some workers but puts all pregnant women on one side of the line,’ Kagan said.

Defending the company's actions, Halligan said UPS did not provide light-duty work to any employees unless they were injured on the job, had a condition that was covered by the Americans with Disabilities Act or lost their federal certificate to drive a commercial vehicle.

Ginsburg challenged Halligan to come up with an example of someone who asked for lighter duty but didn't get it, other than pregnant women.

‘Is there an employee who asked for a dispensation because of a medical condition that restricted her ability to lift, to any single employee?’ Ginsburg asked.”

Of the six male Justices, Justice Anthony Kennedy asked just a few questions and Chief Justice John Roberts commented only twice.

In the meantime, UPS has changed its policy and says it will voluntarily offer pregnant women light duty starting this month. Nine states now have laws that require an accommodation for pregnant workers. 120 congressional Democrats are backing legislation that would change federal law to make explicit the requirement to accommodate pregnant women.

How do you guess the question will be answered?

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(Otherwise known as “the fine print”)

I make a serious effort to be accurate in my writings. These articles are not exhaustive treatises, though, so do not consider them complete or authoritative. Providing this information to you does not create an attorney-client relationship with my firm or me. Do not act upon the contents of this or of any article on our homepage or consider it a replacement for professional advice.

Reprinted with permission from an article submitted for publication in the January, 2015 Southwest Area Human Resource Association newsletter.