Accommodating Pregnant Employees after Young v. UPS : The Birth of a New Standard

1. Accommodating Pregnant Employees after Young v. UPS: The Birth of a New Standard Sacha Dyson Thompson, Sizemore, Gonzalez & Hearing, P.A. sdyson@tsghlaw.com

2. Agenda • Refresher on the laws and regulations applicable to pregnant employees • General discussion of the increased focus on legal issues related to pregnant employees • Review of Young v. UPS and the new standard • Application of Young and Tips for Compliance

3. Refresher on Pregnancy Laws & Regulations

4. The Pregnancy Discrimination Act (PDA) • Enacted in 1978 • Amended Title VII of the Civil Rights Act of 1964 • Added pregnancy-related discrimination to Title VII’s general prohibition on sex discrimination • Previous decisions found employers and other entities could discriminate on the basis of pregnancy • Geduldig v. Aiello, 417 U.S. 484 (1974) (holding that the denial of insurance benefits for work loss resulting from a normal pregnancy did not violate the 14th Amendment) • General Electric v. Gilbert, 429 U.S. 125 (1976) (holding that employers could legally exclude conditions related to pregnancy from employee sickness and accident benefits plans)

5. The Pregnancy Discrimination Act (PDA) • The PDA has two primary clauses: • The first clause prohibits discrimination in the workplace on the basis of pregnancy, childbirth, and related medical conditions • The second clause ensures that pregnant women are treated the same as nonpregnant employees who are “similar in their ability or inability to work”

6. The Pregnancy Discrimination Act (PDA) • The PDA covers all aspects of pregnancy and all aspects of employment, including hiring, firing, promotion, and health insurance benefits • It does not require preferential treatment for pregnant employees • Preferential treatment (i.e. accommodations such as bathroom breaks, removal of marginal duties, and leave) may be required for certain pregnancy-related complications or illnesses • EEOC is charged with enforcing the PDA • Same damages available for discrimination against pregnant employees as any other violation of Title VII

7. Florida Law • Prohibits discrimination but does not affirmatively require accommodation or any preferential treatment • Other cities and states have passed laws requiring preferential treatment, such as Illinois, Delaware, New Jersey, West Virginia, Minnesota, New York City, Washington D.C., Alaska, Connecticut, and New Jersey, California, Hawaii, Louisiana • In 2014, Illinois enacted the Illinois Pregnancy Accommodation Act, requiring employers to provide accommodations (e.g., bathroom breaks, assistance with manual labor, leaves of absence) to pregnant employees • Florida did not include these provisions in its recent amendment to the Florida Civil Rights Act

8. Florida Law • Prior to April 2014, there was a long-standing debate of whether the Florida Civil Rights Act prohibited pregnancy discrimination • It used the same language as Title VII before the PDA • It was enacted after the PDA amendment to Title VII, but it did not use the same language • There was a split in the DCAs as well as federal courts whether the Florida Civil Rights Act included pregnancy discrimination • Florida Supreme Court settled the debate in Delva v. Continental Group, Inc., 137 So. 3d 371 (Fla. 2014) • The Court held that the Florida Civil Rights Act’s prohibition on sex discrimination includes pregnancy discrimination • At the time, there was a bill pending before the Florida legislature to amend the Florida Civil Rights Act, but it died in committee

9. Florida Law • The Florida Legislature acted this year to amend the Florida Civil Rights Act to include pregnancy discrimination, effective July 1, 2015 • Prohibits pregnancy discrimination in employment • Prohibits pregnancy discrimination in places of public accommodation, public lodging, and public food service establishments • No court decisions yet interpreting this new language • Many cities and counties also have ordinances prohibiting discrimination based on pregnancy

10. Family and Medical Leave Act • Provides up to 12 weeks of unpaid leave for serious health condition of self, spouse, child, or parent, for the birth and care of a newborn, or adoption of child • No damages under self-care provision of FMLA for state employers • Some authority recognizes the ability to seek reinstatement as well as declaratory and injunctive relief under FMLA when a state official is sued in his or her official capacity • Cobb v. Alabama, No. 2:10CV502-MHT, 2011 WL 3666696, at *3 (M.D. Ala. Aug. 22, 2011) • LaFleur v. Hugine, No. CV-12-J-2315-NE, 2013 WL 5355035, at *5 (N.D. Ala. Sept. 24, 2013) aff'd, 587 F. App'x 536 (11th Cir. 2014)

11. Family and Medical Leave Act • Eligibility requirements • Employee: 1 year, 1250 hours of service, and a worksite with 50 or more employees in a 75-mile radius • Even if no eligible employees, all state and local governments must comply with posting requirements • Both continuous and intermittent leave available for leave related to a serious health condition • No intermittent leave for birth of newborn, bonding time, or adoption • Bonding time leave only available for 12 months

12. Family and Medical Leave Act • Protections for pregnant employees • Continuous or intermittent leave during pregnancy • A serious health condition can include pregnancy complications, prenatal care, or pregnancy-related illnesses • This is leave under the self-care provision of the FMLA • Continuous leave after birth of the child • This is leave under the family-care provision of the FMLA

13. Family and Medical Leave Act • Can require medical certification for self-care leave when notice is provided • Communications with provider are limited • Authentication or clarification only • Direct supervisor cannot communicate with doctor • Can require fitness-for-duty certification when returning from leave as long as uniform policy and notice provided • If safety-sensitive position, can require fitness-for-duty certification every 30 days when using intermittent leave

14. Americans with Disabilities Act • A normal, uncomplicated pregnancy does not constitute a disability under the ADA. • In its regulations, EEOC has acknowledged that “pregnancy itself is not an impairment within the meaning of the ADAAA, and thus is never on its own a disability” • Courts likewise have held that a healthy pregnancy does not constitute a disability under the ADA • Mayorga v. Alorica, Inc., No. 12-21578-CIV, 2012 WL 3043021, at *5 (S.D. Fla. July 25, 2012) (“Pregnancy, absent unusual circumstances, is not considered a disability under the ADA”) • Bray v. Town of Wake Forest, No. 5:14-CV-276-FL, 2015 WL 1534515, at *11 (E.D.N.C. Apr. 6, 2015) (noting the “well-established federal court precedent that pregnancy alone is not a ‘disability’ for purposes of the ADA”)

15. Americans with Disabilities Act • Exception for certain pregnancy-related illnesses • According to EEOC, pregnancy-related illnesses may be a disability if they substantially limit a major life activity or bodily function • Courts likewise have recognized that such conditions may qualify as a disability • Jeudy v. Attorney Gen., Dep't of Justice, 482 F. App'x 517, 520 (11th Cir. 2012) • Mayorga v. Alorica, Inc., No. 12-21578-CIV, 2012 WL 3043021, at *5 (S.D. Fla. July 25, 2012) • “Thus, where a medical condition arises out of a pregnancy and causes an impairment separate from the symptoms associated with a healthy pregnancy, or significantly intensifies the symptoms associated with a healthy pregnancy, such medical condition may fall within the ADA's definition of a disability.”

16. Americans with Disabilities Act • Examples of Pregnancy-Related Disabilities under the ADA: • According to the EEOC: • Pelvic inflammation causing pain and difficulty walking • Pregnancy-related carpal tunnel syndrome • Pregnancy-related sciatica limiting musculoskeletal functions • Gestational diabetes limiting endocrine function • Preeclampsia, which causes high blood pressure • Cervical insufficiency, which requires bed rest during pregnancy • Pregnancy-related anemia • Nausea causing severe dehydration • Abnormal heart rhythms • Depression

17. Americans with Disabilities Act • Examples of Disabilities under the ADA: • Recognized by the Court: • A high-risk pregnancy, as designated by the employee’s doctor, with breech presentation, three emergency room visits, bed rest for three weeks, premature contractions, severe morning sickness, and severe pains • Mayorga v. Alorica, Inc., No. 12-21578-CIV, 2012 WL 3043021, at *1 (S.D. Fla. July 25, 2012) • Pre-term labor and best rest may be a disability under the ADA • McKellips v. Franciscan Health Sys., No. C13-5096MJP, 2013 WL 1991103, at *4 (W.D. Wash. May 13, 2013)

18. Americans with Disabilities Act • Examples of Conditions Not a Disability Under the ADA: • Pelvic pain due to fibroids • Jeudy v. Attorney Gen., Dep't of Justice, 482 F. App'x 517, 520 (11th Cir. 2012) (finding that there was no substantial limitation on a major life activity when the employee admitted that the pain was intermittent and improving and her doctor did not restrict her ability to perform any major life activity) • Isolated incidents of spotting • Abbott v. Elwood Staffing Servs., Inc., 44 F. Supp. 3d 1125, 1166 (N.D. Ala. 2014)

19. Americans with Disabilities Act • Examples of Conditions Not a Disability Under the ADA: • A weakened back and diminished tolerance for lifting heavy objects • Selkow v. 7-Eleven, Inc., No. 8:11-CV-456-T-33EAJ, 2012 WL 2054872, at *15 (M.D. Fla. June 7, 2012) (finding that the employee failed to establish that she was substantially limited in performing a major life activity by a diminished activity tolerance) • Severe morning sickness where the doctor did not restrict the employee from working • Wonasue v. Univ. of Maryland Alumni Ass'n, 984 F. Supp. 2d 480, 490 (D. Md. 2013) • Temporary bed rest in the first trimester • Serednyj v. Beverly Healthcare LLC, No. 2:08-CV-4 RM, 2010 WL 1568606, at *16 (N.D. Ind. Apr. 16, 2010) aff'd, 656 F.3d 540 (7th Cir. 2011)

20. Americans with Disabilities Act • Disability determination is case-specific and depends on whether the employee can establish that the condition substantially limits a major life activity or bodily function • The ADAAA has eased this burden significantly, but it is not nonexistent • It typically needs to be a condition that is not associated with a normal, healthy pregnancy • Spees v. James Marine, Inc., 617 F.3d 380, 397 (6th Cir. 2010) (“Pregnancy-related conditions have typically been found to be impairments where they are not part of a ‘normal’ pregnancy.”) • This determination involves consideration of the condition, manner, and duration in performing the major life activity • Courts frequently have looked at whether the employee’s doctor has imposed restrictions on her activities

21. Americans with Disabilities Act • The “record of” and “regarded as” prongs may be implicated as well. • EEOC regulations recognized that a pregnancy-related disability may establish a record of a disability • “Regarded as” prong may apply unless the actual or perceived condition was transitory (less than 6 months) and minor • Some courts have concluded that impairment is transitory and minor when it starts in the fifth of pregnancy, is caused by the pregnancy, and will be resolved after birth • Selkow v. 7-Eleven, Inc., No. 8:11-CV-456-T-33EAJ, 2012 WL 2054872, at *15 (M.D. Fla. June 7, 2012) • Even if the actual impairment is transitory and minor, this defense may not apply if the employer perceived the employee (albeit incorrectly) to have a more substantial impairment • Nevitt v. U.S. Steel Corp., 18 F. Supp. 3d 1322, 1331-32 (N.D. Ala. 2014)

22. Americans with Disabilities Act • The “record of” and “regarded as” prongs may be implicated as well • Because a normal pregnancy is not a disability, employers must be cautious about making assumptions regarding a pregnant employee’s ability to do certain tasks during the pregnancy • Such assumptions could cause liability under the “regarded as” prong • No duty to accommodate or engage in interactive process in a “regarded as” case

23. Americans with Disabilities Act • Before an employer must consider an accommodation, the employee is required to ask for one • No magic language, but the employee must make the employer aware of the need for an accommodation • An employer should not make assumptions • The employee also must be qualified to perform the essential functions of the job • It is important to assess the essential functions of the job, if not done already, when an employee makes a request for accommodation • If a pregnant employee requests an accommodation, the employer generally should engage in the interactive process • The amendments to the ADA place greater emphasis on the interactive process • It is important to engage in this process and document it regardless of the outcome

24. Americans with Disabilities Act • In the interactive process, the employer may ask for information regarding: • The specific medical condition at issue, including • How the impairment impacts the employee’s ability to perform her job, including • what restrictions have been imposed on the employee • the precise mental or physical limitations resulting from the disability • What accommodations she is seeking • You can ask for information from the employee’s doctor unless the disability and need for accommodation are obvious • A description of the impairment • Whether the employee has a substantial limitation in a major life activity • How the impairment impacts the employee’s ability to perform her job • What accommodations are necessary • The duration of the accommodations • Whether leave is needed • Can also consult the physician directly regarding these topics

25. Americans with Disabilities Act • This information should allow you to assess whether the employee has a disability and to determine what accommodations are available • Careful about asking too many questions about the medical condition • Must be job-related and consistent with business necessity • Maintain the confidentiality of the medical information

26. Americans with Disabilities Act • In the interactive process, the employer may ask for information regarding: • Why the requested accommodation will allow the employee to perform the essential functions of the job • What alternative and less burdensome accommodations could be considered that would allow the employee to perform the essential functions of the job

27. Americans with Disabilities Act • Examples of accommodations that can be considered: • Reassigning or removing marginal functions • Modifications to how essential job functions are carried out • Providing assistive devices, such as a modified workstation or a stool • Allowing an employee to work remotely • Modifying an employee’s work schedule • Providing additional bathroom breaks • Not requiring overtime work • Changing an employee’s shift • Adjusting arrival or departure times • Altering when certain functions are performed • Modifying workplace policies • No food or drink policies • Reassignment to a vacant position • Granting leave • Employer is not required to provide all of these accommodations in every case

28. Americans with Disabilities Act • Interactive process requires good-faith on bothparties • Engage in a meaningful discussion • Employers should explain why the requested accommodation cannot be provided • If an employee refuses to provide information or cooperate, it ends the employer’s obligation to engage in the interactive process. • Need to give reasonable opportunity and explanation of information needed for compliance • This process should be followed each time an employee makes an accommodation request • Don’t have to provide multiple accommodations if one accommodation is effective

29. Americans with Disabilities Act • The employer is not required to grant the employee the accommodation of her choice if another accommodation will allow the employee to perform the essential functions of the job • Certain requested accommodations are not reasonable as a matter of law: • Removal of an essential function • But a leave of absence may be a reasonable accommodation if the employer can return to work presently or in the immediate future • Indefinite leave of absence • Creating a part-time or other position • Promoting an employee

30. Americans with Disabilities Act • Additionally, accommodations that impose an undue hardship are not required • Accommodation would cause significant difficulty or expense on the entity’s operations • It is important to document the undue hardship • Factors to consider: • Nature and cost of the accommodation • Financial resources of the entity as well as the department where the accommodation would be made • Impact of the accommodation on the department’s operations and costs • The way that the department conducts its operations

31. The Patient Protection and Affordable Care Act (ACA) • Provides for protection after birth of child • Amended FLSA to provide for reasonable breaks for employees to express breast milk • Reasonable break time for up to 1 year • Private place other than bathroom • Can be temporary space • Employers with less than 50 employees are exempt if it would cause an undue burden • No requirement to compensate employees for break time unless otherwise using paid break time

32. Increasing Focus on Legal Issues Related to Pregnant Employees

33. EEOC’s Focus on Pregnant Employees • EEOC has identified litigation of claims related to accommodating pregnant employees and pregnancy discrimination as one of its six national priorities • In 2014, there were 3,400 charges of pregnancy discrimination filed resulting in $14.4 million in monetary benefits paid through the EEOC administrative process (excluding litigation) • No separate data maintained on failure to accommodate claims under the ADA

34. EEOC’s Focus on Pregnant Employees • Pregnancy, gender, and disability claims represent more than half of all charges filed with the EEOC

35. EEOC’s Focus on Pregnant Employees • Miami District Office had the largest number of pregnancy discrimination charges in 2013

36. EEOC’s Focus on Pregnant Employees • On July 14, 2014, EEOC issued enforcement guidance on pregnancy discrimination and related issues • Replaced previous guidance from 1983 Compliance Manual • No public review and comment on the guidance • It does not have the force of law and is not entitled to deference • EEOC passed the guidance on a narrow 3-2 vote • Dissenting commissioners noted that it was a dramatic departure from existing law and precedent and criticized the lack of public review and comment

37. EEOC’s Focus on Pregnant Employees • Four parts to the guidance: • Part I discusses discrimination under Title VII and PDA • Part II discusses accommodating pregnancy-related impairments • Part III discusses other laws affecting pregnant workers • Part IV describes the EEOC’s guidance on “best practices”

38. EEOC’s Focus on Pregnant Employees • Key points in the guidance: • Employers are prohibited from discriminating against employees who intend to become pregnant, who are pregnant, and who have been pregnant • EEOC views the PDA as covering every aspect of the reproductive process, including the use of birth control as well as allowing claims based on a previous pregnancy • Lactation is a covered pregnancy-related medical condition • EEOC views demoting an employee due to her breastfeeding schedule to raise an inference that the action was taken because of a disability

39. EEOC’s Focus on Pregnant Employees • Key points in the guidance: • Adverse employment actions based on assumptions or stereotypes about pregnant workers are unlawful • Harassment based on pregnancy, childbirth, or related medical conditions is as unlawful as other forms of sexual harassment • Discourages questions about pregnancy • Although the EEOC acknowledges that such questions are not illegal, it will consider those questions as evidence of discrimination in any subsequent charge

40. EEOC’s Focus on Pregnant Employees • Key points in the guidance: • The PDA prohibits employers from requiring pregnant workers who are able to do their jobs to take leave • Requirement that parental leave (i.e. bonding or care giving leave) be provided to similarly situated men and women on same terms • Employer’s policy of providing light-duty only to employees with on-the-job injuries violates the PDA • EEOC view: a pregnant employee (even with a healthy pregnancy) is entitled to the same accommodations provided to other injured workers, regardless of whether job-related, as long as the limitation is the same • EEOC may challenge limitations on sick leave policies as having a disparate impact on pregnant employees

41. EEOC’s Focus on Pregnant Employees • Key points in the guidance: • Employer’s health plan must cover prescription contraceptives if it covers other preventative care • EEOC admits that its “best practices” go beyond the requirements of law • Guidance was issued shortly after the Supreme Court granted review in Young v. United Parcel Service • EEOC urged the Court not to grant review because it was working on this guidance

42. EEOC’s Focus on Pregnant Employees • EEOC’s interpretation was based on the second clause in the PDA, which requires employers to treat pregnant employees the same as non-pregnant employees who are “similar in their ability or inability to work” • EEOC viewed pregnant employees comparators as any other injured worker who had the same limitations in his or her ability to perform the job duties • It was this same clause that was at issue in the Supreme Court’s decision in Young v. UPS

43. Congress’s Focus on Pregnant Employees • Pregnant Workers Fairness Act • Bill pending before Congress • It previously was introduced in 2013, but died in committee • It was introduced again on June 4, 2015 • It essentially would require employers to accommodate and grant preferential treatment to all pregnant employees • No similar state law bill proposed in Florida

44. Supreme Court’s Focus on Pregnant Employees • In July 2014, the Supreme Court accepted review in Young v. UPS to decide whether the PDA requires employers to provide workplace accommodations to certain pregnant employees

45. Supreme Court’s Focus on Pregnant Employees • Factual Background • UPS’s CBA with its drivers provided for light-duty assignments when an employee had a work-related injury • It also provided that it would make a good faith effort to accommodate employees with disabilities • All other employees were not eligible for light duty • Young, who worked as a part-time delivery driver for UPS, became pregnant and requested light-duty work • Her doctor restricted her from lifting more than 20 pounds during the first 20 weeks of her pregnancy and 10 pounds thereafter

46. Supreme Court’s Focus on Pregnant Employees • Factual Background • UPS required that delivery drivers be able to lift parcels weighing up to 70 pounds • UPS denied Young’s request for light duty because its light-duty program applied only to on-the-job injuries • It permitted Young to take an extended leave of absence, and Young returned to work following her baby’s birth • Young then sued UPS under Title VII and the PDA, arguing that UPS discriminated against her on the basis of her pregnancy by failing to provide her light-duty work as UPS would do for employees injured on the job

47. Supreme Court’s Focus on Pregnant Employees • Procedural History • District Court entered summary judgment in favor of UPS, finding no disparate treatment • Fourth Circuit affirmed the District Court’s ruling, finding: • Employers do not violate the PDA or Title VII by refusing to provide pregnant employees with light duty under a program that is restricted to job-related injuries • Pregnant employees are not similarly situated to those with work-related injuries • Young was treated the same as other employees who have off-the-job injuries and were denied light duty • Young’s position would require preferential treatment for pregnant employees • No duty to accommodate under the PDA • SeeYoung v. United Parcel Serv., Inc., 707 F.3d 437, 451 (4th Cir. 2013)

48. Supreme Court’s Focus on Pregnant Employees • Before Young, it was well settled in Florida and the Eleventh Circuit Court of Appeals that an employer could offer light-duty work for a job-related injury and not offer it to pregnant employees without violating the PDA • Spivey v. Beverly Enterprises, Inc., 196 F.3d 1309, 1313 (11th Cir. 1999) • “We therefore hold that an employer does not violate the PDA when it offers modified duty solely to employees who are injured on the job and not to employees who suffer from a non-occupational injury. Of course, pregnant employees must be treated the same as every other employee with a non-occupational injury.”

49. Review of Young v. UPS and the New Standard

50. Arguments Before the Court Young’s Arguments UPS’s Arguments • UPS accommodated workers injured on and off the job who had the same restrictions as she did • UPS discriminated against pregnant workers because it had a light-duty policy for many other workers, but not pregnant employees • Pregnant employees are entitled to an accommodation as long as it is provided to another employee with the same restriction even if it is not provided to all employees with the same restrictions • UPS treated pregnant employees just like all other injured workers who did not have a disability or on-the-job injury • The second clause of the PDA merely prohibits discrimination