You can treat pregnant employees badly, so long as you treat all your employees badly.
Young v. UPS, ___ F.3d ____, No. 11-2078 (4th Cir. Jan. 9, 2013). Peggy Young began working at UPS in 1999. From 2006 until the end of her employment with UPS, she worked as a part-time, early morning driver. In July of 2006, Young requested and received a leave of absence so that she could undergo in vitro fertilization treatments. When Young became pregnant, she sought to extend her leave. In September of 2006, she supplied her supervisor with a doctor’s note restricting her from lifting more than twenty pounds for the first twenty weeks of her pregnancy, and ten pounds thereafter. Young also stated that she was not yet ready to return to work.
Young’s supervisor informed her that UPS policy would not allow her to work as long as she had the twenty-pound lifting restriction. UPS had a seventy pound lifting requirement for Young’s position. Young explained to her supervisor that her job required her to lift more than twenty pounds very rarely, and that other employees were willing to help her. Still, Young’s supervisor determined that she was unable to perform the essential functions of her job.
Young’s supervisor also determined that she was ineligible for a light duty assignment. UPS did offer some employees light duty assignments, but only if they had experienced on-the-job injuries, required accommodations under the Americans with Disabilities Act (ADA), or who had lost their Department of Transportation certification. Young did not fit into any of these categories.
By November 2006, Young’s twelve weeks of leave under the Family and Medical Leave Act (FMLA) had expired. She went on an extended leave of absence, gave birth to her child, then rejoined UPS at some point thereafter.
Young filed a charge with the Equal Employment Opportunity Commission on July 23, 2007, alleging, among other things, discrimination on the basis of sex and pregnancy. Young filed a complaint in federal court, and the district court granted summary judgment for UPS. Young appealed, challenging the district court’s grant of summary judgment on her ADA and Pregnancy Discrimination Act (PDA) claims.
Young first claimed that the district court erred by deciding she could not prove all of the essential elements of disability discrimination. Under the ADA, an employee can be protected in three ways:
- The employee is disabled, that is, the employee has a physical or mental impairment that substantially limits one or more major life activities;
- The employee has a record of such an impairment; or
- The employee is regarded as having such an impairment.
In the third category, the “regarded as” situation includes the circumstance in which the employer mistakenly believes that an actual, non-limiting impairment substantially limits one or more major life activities. In this category, the employer must believe that an individual has a substantially limiting impairment when, in fact, the impairment is not so limiting
In this case, Young did not argue that she was disabled, but that UPS regarded her as disabled, and discriminated against her because of that perceived disability. In support of her claims, Young pointed to her supervisor’s insistence on a doctor’s note, UPS’ preventing Young from working based solely on a doctor’s note, and relying on a mistaken belief that Young was unable to work. The Fourth Circuit struck down each of these arguments. As to the first part, the Fourth Circuit found that Young had not shown sufficient facts to prove that UPS had insisted on a doctor’s note. As to the second part, the Fourth Circuit held that the employer had no duty to seek additional information about Young’s ability to work when it had a note from Young’s doctor saying that she was restricted. As to the third part, the Fourth Circuit found that Young had not mustered enough evidence to show that UPS believed that she was disabled.
On this third part, the Fourth Circuit pointed out that that the law does not regard pregnancy as a disability. Similarly, temporary impairments generally are not regarded as disabilities. At most, Young’s evidence established that UPS believed Young to be pregnant and under a temporary lifting restriction on account of her pregnancy. Given the relatively manageable weight restriction—twenty pounds—and the short duration of the restriction, the Fourth Circuit held that there was no evidence that Young’s pregnancy or her lifting limitation constituted a disability within the meaning of the ADA. Beyond the fact of her pregnancy and her lifting restriction, the Fourth Circuit held that, with one exception, Young had offered no evidence that UPS regarded her as disabled.
The exception is in a footnote. There, the Fourth Circuit makes passing mention of the fact that UPS had coded Young as “disabled” in its records. One might well think that an employer categorizing an employee as disabled is evidence that the employer regarded the employee as disabled. The Fourth Circuit rejected that contention, however, because there was “no evidence in the record linking this coding to a decisionmaker who worked with Young.” (Emphasis added.)
Young also claimed that the district court erred by deciding that she could not prove all of the essential elements of pregnancy discrimination. Young’s core contention was that UPS discriminated against pregnant employees by allowing light duty accommodations for some employees—those injured on the job, those who required accommodations under the ADA, and those who lost their DOT certification—but not pregnant employees.
Young argued that UPS’s policy was direct evidence of pregnancy discrimination. However, as the court pointed out, UPS’s policy was pregnancy-blind; meaning that it offered accommodations for only a certain group of individuals, and did not specifically exclude pregnant women from that group. In deciding that this policy was not discriminatory, the Court emphasized that the PDA does not grant pregnant employees “favored” status. Though it is certainly discriminatory to treat pregnancy-related conditions less favorably than other medical conditions, the PDA does not require preferential treatment for pregnant workers. Stated simply, employers can treat pregnant employees as badly as they treat similarly affected but non-pregnant employees. If UPS accommodated a pregnant employee but not one who was injured away from work, this would constitute preferential treatment.
Young also argued that she had presented sufficient circumstantial evidence of pregnancy discrimination such that she should have withstood summary judgment. The Court ultimately decided that Young could not demonstrate that similarly-situated employees outside her protected class received more favorable treatment than she did. While Young attempted to compare herself to those employees who were accommodated under the ADA, the Court decided that these were improper comparators, pointing again to the pregnancy-blind policy. Young’s pregnancy was simply too different from a disability under the ADA.
This decision is an important one in Fourth Circuit jurisprudence. Importantly, it does not permit employers to refuse reasonable accommodations to pregnant employees, unless the employer does so as a result of a pregnancy-blind policy.