On Wednesday, the Supreme Court heard oral argument in Young v. UPS, a case that examines what protections pregnant workers have under the Pregnancy Discrimination Act (“PDA”). As I explained in detail earlier this week, the issue in Young is whether an employer who accommodates some of its workers by providing light duty or modified work assignments is required to provide pregnant workers who are “similar in their ability or inability to work” with the same accommodations it voluntarily provides its other workers. Oral argument was lively and we’ll know by June at the very latest how the Supreme Court will decide this case. (One court-watcher predicts a ruling in favor of UPS, but hedges that his “confidence level is not high on this prediction.”)
The PDA, however, is not the only law that protects pregnant workers. As the Equal Employment Opportunity Commission (“EEOC”) made clear in the updated pregnancy guidance it released this summer, pregnant women are not exempt from the protections of the ADA. Pregnant workers who have medical conditions that would trigger ADA protection are entitled to reasonable accommodations on the same terms as any other workers who have ADA-protected medical conditions. In order to be covered by the ADA, a pregnant woman must establish that she has a pregnancy-related condition that substantially limits one or more major life activities; the EEOC clarifies that even “impairments of short duration that are sufficiently limiting can be disabilities.” Numerous medical conditions associated with pregnancy may qualify for protection under this test. These include carpal tunnel syndrome, cervix problems, sciatica, pelvic inflammation, gestational diabetes, preeclampsia, nausea that causes severe dehydration, abnormal heart rhythms, swelling, or depression. Moreover, even a non-specific pregnancy-related condition – such as a doctor’s opinion that a pregnancy is “high risk” and therefore requires certain limitations, even where there is no diagnosis of a specific medical impairment –may able to obtain protections under the ADA. The ADA also protects pregnant women who are “regarded as” having disabilities. If an employer takes adverse action against a pregnant woman – for example, it refuses to hire her, terminates her, or reassigns her to a low-paying position against her will – the employer may also be liable under the ADA for disability discrimination.
While the ADA does not cover pregnancy itself – and is therefore narrower than the PDA, which covers pregnancy generally – the ADA’s accommodation requirement is substantially broader than any interpretation of the PDA’s reasonable accommodation requirement. The ADA mandates reasonable accommodations where an individual is found to be disabled under the ADA’s standard, whereas the PDA, at best, only requires that pregnant women be treated as well as non-pregnant workers, meaning that a company that makes no accommodations for non-pregnant workers has no obligations under the PDA to make accommodations for pregnant workers.
Some pregnant women may also be protected by state and local laws. A bipartisan coalition of state and local legislators that filed a brief in support of Young in the Supreme Court noted that in order to compensate for the lack of comprehensive protections for pregnant workers under federal law, many states and localities have been passing their own laws requiring employers to provide reasonable accommodations to pregnant women.
Finally, should the Supreme Court side with UPS and interpret the PDA narrowly, Congress might be willing to consider new legislation to protect pregnant women. The Pregnancy Fairness Protection Act, which expands protections for pregnant women, has repeatedly been introduced in Congress – albeit unsuccessfully – in recent years, and a decision by the Supreme Court in Young v. UPS limiting the PDA might push Congress to take action. It is worth remembering that the PDA itself was passed in 1978 specifically to overturn a 1976 Supreme Court decision that held that excluding pregnancy from a benefits plan did not violate Title VII’s ban on sex discrimination because discrimination on the basis of pregnancy is not sex discrimination. The PDA quickly clarified that discrimination on the basis of pregnancy most certainly is sex discrimination. There is, therefore, some reason to hope that even an unfavorable decision by the Supreme Court might only be a temporary setback and might lead to better legal protections down the road.