Delaware, Ahead of the (Pregnancy) Curves

By Lauren E.M. Russell

In Young v. United Parcel Service, Inc., the Supreme Court interpreted the language of the federal Pregnancy Discrimination Act, which requires that employers treat pregnant employees in the same manner as other individuals who are similarly limited in their abilities. Among the Court’s conclusions is that a policy that provides job-related accommodations to those who are injured on the job and those who have disabilities governed by the Americans with Disabilities Act may also have to be extended to pregnant employees with physical restrictions. The decision opens a lot of questions, but Delaware employers may have a leg up in compliance!

The Court’s Decision

In Young, the Court addressed the case of a young woman who became pregnant after having several miscarriages. In connection with her pregnancy, her doctor placed her on a lifting restriction. UPS informed Young that it could not accommodate her lifting restriction, and she was placed on unpaid leave. Young eventually lost her employer-sponsored health coverage, and filed suit against UPS for pregnancy discrimination.

UPS readily acknowledged that it refused to provide an accommodation to Young. It also acknowledged that it routinely provides accommodations to employees: (1) with a work-related injury; (2) who have lost their Department of Transportation certification; or (3) who have a disability within the meaning of the Americans with Disabilities Act, as amended. Historically, UPS’s policy would not have been a problem. As we all know, pregnancy is not, in and of itself, a disability. In addition, EEOC regulations have long held that an employer could have a policy that provided reasonable accommodations to work-related injuries, but denied such accommodations to similarly limited pregnant employees. The purpose of this carve-out is to allow employers to avoid workers’ compensation costs by putting injured employees back to work on light duty.

So what changed? The EEOC has changed its stance on pregnancy. Under the Americans with Disabilities Act Amendment Act, many more limitations now qualify as disabilities, including fertility problems. In addition, the EEOC has made clear that it will be targeting systemic discrimination, including pregnancy discrimination, over the coming years. In connection with this change, the EEOC has just issued a Notice of Proposed Rule Making, and we can expect new regulations with respect to pregnancy within the next year or two.

Setting those developments aside, the Supreme Court did not rule that UPS’s policy was unlawful. Instead, it simply ruled that the trial court had to consider whether there was a legitimate, non-discriminatory reason for the distinctions drawn between the three classes of employees that UPS does accommodate, and UPS’s refusal to accommodate pregnant employees with lifting restrictions.

Impact on Delaware Employers

The Young decision opens up a lot of questions, including what legitimate business considerations may justify a decision to accommodate some employees, while not accommodating pregnant employees. But Delaware employers have some additional guidance, in the form of the new pregnancy provisions of the Delaware Discrimination in Employment Act (DDEA)

As we have reported previously, the Delaware General Assembly amended the DDEA in 2014, to expressly prohibit discrimination against pregnant employees and to require accommodations of pregnant employees, even when they are not disabled within the meaning of Delaware anti-discrimination law. While this statute places a heavier burden on Delaware employers, it also provides some guidance in compliance with the Young decision. In Delaware, there is no question that pregnant employees are entitled to take advantage of the same reasonable accommodation processes that are available to disabled employees-there is no need to determine whether you have a legitimate non-discriminatory reason to make a distinction.

Bottom Line

While Delaware may have raised the bar on employer treatment of pregnant employees, the amendments to the DDEA do provide guidance to Delaware employers. Unlike many other states, we do not have to wait for courts to parse what business concerns are “legitimate,” and which are insufficient to justify different treatment of pregnant employees. We must accommodate them all, under the same standards as applicable to the ADA.

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