PDA and Young: Pregnancy Discrimination Law to Break from Its Infancy

On the heels of the Hobby Lobby decision in late June, the Supreme Court has signaled that women’s health issues in the workplace will continue to be a central issue by granting a petition for certiorari in Young v. United Parcel Service on July 1, 2014.  In Young, the Court will examine whether the Pregnancy Discrimination Act (“PDA”), which provides that pregnant women “shall be treated the same for all employment-related purposes…as other persons…similar in their ability or inability to work,” requires employers to provide work accommodations to pregnant women to the same extent they provide them to other disabled workers.  The Court’s review of Young comes at a time when pregnancy discrimination laws are gaining more attention and more traction, and litigation in this area is increasing.

Federal and state legislatures have been acting to expand required accommodations to pregnant women in the workplace.  Nationwide, Congress is considering the Pregnant Workers Fairness Act (“PWFA”), which would require employers to provide “reasonable accommodations” to pregnant employees.  Although the PWFA has been stalled in committee for the last year, President Obama just last month called for lawmakers to pass the PWFA.  State and local lawmakers are also getting into the mix.  For example, California, New York, and New Jersey have all recently enacted new protections for pregnant employees.

Additionally, the EEOC is taking action in the area of pregnancy discrimination.  The agency recently has announced its plans to issue new guidance regarding an employer’s obligation to reasonably accommodate pregnant employees.  Further, the EEOC’s Strategic Enforcement Plan identifies pregnancy-related accommodations under the PDA and ADA as a “National Priority” under its “Emerging and Developing Issues” section.  The EEOC has also increased its litigation of pregnancy discrimination cases over the last couple of years.

In light of this heightened judicial, legislative, and regulatory activity, employers should take care when considering accommodations for pregnant employees in the workplace, particularly given the state of flux with regard to employers’ responsibilities and obligations in this fast-changing area of the law.

Note:  As this blog entry was posted, the EEOC issued its new guidance, entitled “EEOC Enforcement Guidance on Pregnancy Discrimination and Related Issues” (available here).  Notably, Commissioners Victoria Lipnic and Constance Barker voted against the guidance, noting that if it clashes with the Supreme Court’s ruling in Young, the Supreme Court decision will trump.  The guidance takes an expansive view of employers’ obligation to accommodate pregnant employees, even though the PDA, which prohibits pregnancy discrimination, does not explicitly contain a reasonable accommodation mandate.  It remains to be seen whether or not the Supreme Court’s view of the current state of the law will differ.