Pregnancy accommodation FAQs for employers

What do employers need to know about the Supreme Court's pregnancy accommodation decision last week in Young v. United Parcel Service?

"This blog post is just right!"

For the "somewhat-scholarly" version (also known as the "tl:dr"* version), go here.

*"Too long; didn't read"

For the "one minute 14 second" version, go here.

But for the "just right" version, stay where you are for some FAQs, Goldilocks!

So, now federal law requires employers to make reasonable accommodations for pregnancy? 



Not necessarily. There may be legitimate reasons for employers to accommodate some conditions (such as disabilities within the meaning of the Americans with Disabilities Act, or work-related injuries) while not accommodating pregnancy. Maybe.

Did the Supreme Court say anything about what might or might not "fly" from a pregnancy accommodation standpoint?

Very little. We know that inconvenience or expense is not a legitimate reason for an employer to fail to accommodate pregnancy or related conditions. The Supreme Court majority also said that courts could consider (1) whether the employer made accommodations in other types of cases but not pregnancy, and (2) whether the employer had multiple "accommodation" policies while having nothing for pregnancy.

Speaking of the SCOTUS, what was the breakdown on this decision? I assume the liberals were in favor of accommodation and the conservatives were against it.

I hate to use those labels, but I understand what you're saying. You're right about the "liberals" -- Justice Stephen Breyer wrote the majority opinion, and he was joined by Justices Ruth Bader Ginsburg, Elena Kagan, and Sonya Sotomayor. But Chief Justice John Roberts also joined the majority. And Justice Samuel Alito did not join in the majority opinion, but he separately agreed that the case should be sent back for a determination as to whether Ms. Young should have been accommodated. Both Roberts and Alito were Bush appointees and are viewed as relatively "conservative."

"Trust us. We're juris doctors."

It's probably not surprising that Justices Antonin Scalia and Clarence Thomas dissented, but maybe a bit more surprising that Justice Anthony Kennedy - generally seen as a "swing" vote - joined in the dissent. (Kennedy also wrote a separate dissent emphasizing that he was not opposed to pregnancy accommodations as a matter of principle.)

Don't a lot of states and cities already have laws requiring pregnancy accommodation?

Yes. According to a January 2015 article on the Pew Charitable Trusts website, the following states currently require some form of pregnancy accommodation: Alaska, California, Connecticut, Delaware, the District of Columbia, Hawaii, Illinois, Louisiana, Maryland, Minnesota, New Jersey, Texas (government employees only), and West Virginia.

US Pregnancy Accommodation Laws
Lavender states have pregnancy accommodation laws now. Green states will be considering them this year.

In addition, New York City, Philadelphia, and Central Falls and Providence, Rhode Island, have local laws requiring pregnancy accommodation.

Pregnancy accommodation laws will be considered this year, according to the article, by legislatures in Georgia, Massachusetts, New York, North Carolina, Pennsylvania, Rhode Island, and Wisconsin.

Let's say, just for the sake of argument, that my company is in Hawaii, a "lavender" state. How does the Supreme Court decision affect us?

First of all, if your company is in Hawaii, then we hate you. (Kidding - we're just jealous!)

"Another day, another dollar . . . it's a hard knock life."

Seriously, if you're in any jurisdiction that already requires pregnancy accommodation, then comply with your applicable state or local laws. They may provide more protection to pregnant employees than federal law does. If so, then compliance with your state or local law should automatically put you in compliance under the new federal standard. (But make sure that your state or local law really is more pro-accommodation.)

OK, then let's say my company is in Kansas instead. According to your little map, Kansas doesn't have a pregnancy accommodation law. What should we do?

Since you don't have a state or local law that applies, you are governed by federal law -- that is, the Young decision and how it may be interpreted by lower federal courts in the future. Based on Justice Alito's concurrence, you may have an argument that you don't have to treat pregnant employees the same way that you treat employees with ADA disabilities or employees with work-related conditions. But this is a risky position to take. The Equal Employment Opportunity Commission doesn't agree with it, and it's not clear that the SCOTUS majority does, either.

If you prefer not to incur significant legal risk, then you probably ought to assume pregnancy accommodation is required if you make accommodations for any other reasons -- including ADA accommodations and accommodations for work-related injuries.

Use the principles you've learned in making disability accommodations under the ADA.

Also, and this is important: Be sure to use what you've learned in dealing with disability accommodations under the ADA - no need to accommodate at all unless the employee asks for it, or if the need is obvious. If you think there is a need to accommodate, begin the "interactive process" with the employee to figure out what will work best. Presumably, you'll be able to choose the least expensive, least disruptive alternative that is still effective (in other words, the alternative that lets the employee continue working). Although the legal analysis is different for pregnancy, I doubt that a court will require you to displace another employee, or provide personal equipment, or violate a seniority policy to make a pregnancy accommodation. The same presumably goes for creating a job that doesn't already exist, although if you "create" light-duty jobs for employees with workplace injuries and if you have to do the same for pregnant employees, then you might have to "create" a job for the pregnant employee even though the ADA would not require that for an employee with a non-work-related disability.

"Accommodate this, baby!"

I run a day care facility, and about 75 percent of my employees are young women of childbearing age. We're covered by federal law, but just barely (25 employees). What am I going to do if I have 3-4 teachers getting pregnant at once, which happens all the time?

That's tough, but I think your best bet is to try to accommodate. This could include providing a chair or stool so the teacher didn't have to be on her feet for long periods of time, more frequent breaks, and help with lifting toddlers. You might also have to shift teacher's aides around so that you don't have two pregnant women needing accommodation who are assigned to the same classroom. Again, use what you've learned in dealing with the ADA.

Didn't the EEOC issue something on pregnancy accommodation last summer? Did this Supreme Court decision invalidate it?

Yes, and not clear. I'm not convinced that the Young decision will have much of a substantive effect on the EEOC's Enforcement Guidance on Pregnancy Discrimination and Related Issues, which was issued last July. The majority opinion did criticize the EEOC for making a dramatic change in its prior position on pregnancy discrimination without providing an adequate explanation for the change. It also criticized the EEOC for issuing the Enforcement Guidance after the Supreme Court had agreed to hear the Young case.

But the majority did not appear to criticize the EEOC's substantive position, which is that employers are required to accommodate pregnancy and related conditions if they make any other accommodations - including ADA accommodations and offering light duty for work-related injuries.

Pregnant-Disabled Parking Sign.flickrCC.MatthewRutledge
Is pregnant the new "disabled"?

The EEOC will have to update its Enforcement Guidance document in light of the Young decision. We'll see.

I saw your "quick and dirty" post on the Supreme Court decision, and a week later I am still scratching my head. What does the Court's decision have to do with Office Space?

The majority opinion in Young reminded me of the "pieces of flair" scene in Office Space because, like poor Jennifer Anniston in that scene, most employers are willing to follow the rules - if somebody will just tell them what they are. You want us to accommodate pregnancy? Great - we'll do it. And the Court majority won't answer - it just rolls its eyes and says, You want to do more than just the bare minimum, don't you? And employers are nodding their heads, so eager to please and yet confused about what exactly it is they're supposed to be doing.

(In other words, I thought the Supreme Court majority could have done a better job explaining what the new expectations for employers actually were.)

NOTE TO READERS: Because of the Easter holiday, this will be our "Friday" blog post. We'll be back to our regular schedule next week. We wish you a happy Easter, or a happy Passover, or a happy first weekend in April, as the case may be!


Image credits: U.S. map generated by me using 29travels website. Other images from flickr, Creative Commons license: Goldilocks illustration by in pastel; Supreme Court caricature by Donkey Hotey; Hawaii (actually, Kauai) envy by Bryce Edwards; disabled/pregnant parking sign by Matthew Rutledge.

Robin Shea has 30 years' experience in employment litigation, including Title VII and the Age Discrimination in Employment Act, the Americans with Disabilities Act (including the Amendments Act). 
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