The Court’s decision, issued March 25, 2015, adopts a set of rules to be applied to pregnancy accommodation claims. Although the legal reasoning was somewhat complex, the decision permits pregnant employees who seek workplace accommodations which are denied by employers who accommodate others “similar in their ability or inability to work” to pursue pregnancy discrimination claims. While an employer may defend such claims by showing it had “legitimate, non-discriminatory” reasons for denying the accommodation, the Court made clear that this reason normally cannot consist of a claim that it is more expensive or less convenient to add pregnant women to the category of those whom the employer accommodates. Additionally, if an employer does offer a “legitimate, non-discriminatory” reason for its actions, the employee may still proceed with her claim if she can show the employer’s reasons were pre-textual. The Court noted that an employee might make this showing by demonstrating the employer’s policies impose a significant burden on pregnant worker – e.g., by presenting evidence that the employer accommodates a large percentage of non-pregnant workers while failing to accommodate a large percentage of pregnant workers.
The decision does not go so far as to hold that the UPS policy was inherently discriminatory or that pregnancy neutral policies are per se violations of the PDA. However, it does indicate that light duty and other accommodation policies that treat pregnant workers differently from other employees, or that have a disparate impact on pregnant employees, can be subject to challenge under the PDA, and that employers may be called on to demonstrate legitimate reasons – other than cost or convenience – for such differential treatment.
The take-away: Now is a good time to review light duty and other accommodation policies and assess the impact of such policies on pregnant employees. Employers who accommodate non-pregnant employees should be prepared to either extend such protections to similarly situated pregnant employees, or, in the words of the Court, explain why, when they “accommodated so many” they could “not accommodate pregnant women as well.”