Pregnant Belly

What’s Reasonable for the Goose is Reasonable for the Gander

Many of you, especially in the workplace design area, are probably familiar with the Supreme Court discussion of what is reasonable accommodation in the workplace. If not, here is a brief summary.

There is no law specifically mandating accommodation for pregnant workers. We have mandates for special demographic classes (gender, age, religion) and we have mandates for disabilities through the ADA. And we have mandates for conditions developed in the workplace under workers comp regulations. But not pregnancy. As long as pregnant workers are not given less accommodation or are discriminated against (you can’t have a workplace rule preventing pregnant women from doing a job), there is no law that a company has to give more.

If a woman is temporarily unable to perform her job due to a medical condition related to pregnancy or childbirth, the employer or other covered entity must treat her in the same way as it treats any other temporarily disabled employee. For example, the employer may have to provide light duty, alternative assignments, disability leave, or unpaid leave to pregnant employees if it does so for other temporarily disabled employees.

This case is Young v UPS. In this case, Young is a driver at UPS and was not given light duty for the duration of her pregnancy. As a driver, her job description required being able to lift up to 70 pounds. Her doctor ordered her not to lift more than 20 pounds. The reality of the UPS driver job is that she rarely had to lift more than 20 and a coworker even offered to help for those few times she needed to (assuming he was there at the time or course, so this is not a perfect solution). She was put on leave for the duration of her pregnancy. Employees on leave have their health insurance coverage suspended – which I think was the deal breaker in this case.

UPS, as with many large corporations, has a very specific policy for accommodations so that they don’t run afoul of the law. They have three detailed categories of conditions where they provide accommodations. These categories cover all of the legally mandated categories. They also include drivers who lose their licenses to DUIs (which I find a little curious, but that is legally up to the discretion of the company). UPS has historically been very clear and consistent in their use of the categories. If they make exceptions, then the whole point of having the categories is muddied and the legal clarity is lost. So they are very careful to have a policy of the categories, the whole categories, and nothing but the categories.

This is why the case made it up to the Supreme Court. If UPS violated an existing legal mandate, they would have lost at a lower court. But if Young had no claim, her appeal would not have been heard. In this case, Young lost at both lower levels, but there was always a feeling that something was amiss, warranting a rehearing at a higher level. There are protections against discrimination of pregnant women but they prevent discrimination against, not special consideration for, pregnant women. On the other hand, it seemed crazy to accommodate DUI drivers but not pregnant ones. So the Supreme Court accepted it.

My Take

After the oral arguments I thought UPS had the better legal case. They seemed to comply with the law. I thought their category method was pretty foolish because accommodating good workers is much much cheaper than finding a new one, even if the accommodation would be 9 months long and could apply to thousands of workers. But smart and legal are two different things. So are ethical and legal.

But Judge Breyer found a nuance that I really liked. Full disclosure – he is my favorite Supreme Court Justice. I don’t know how many of you are SCOTUS junkies and have favorites, or even follow Supreme Court rulings in detail. But Constitutional law is a passion of mine. That is why I was so intrigued by his nuanced decision. And it makes sense too. It is fairer. It is more ethical IMHO as well. He says that if UPS made any accommodations for someone in one of the three existing categories that would also work for Young, then they had to do it here too. If the accommodation is reasonable for that worker, then it is reasonable for Young (hence the title of this post). Reasonable is reasonable. Categories don’t change that.

So UPS doesn’t have to develop an accommodation for Young or any other pregnant workers (because there is no current law requiring it), but if they already have one that would work, it is by definition reasonable and must be used. The case was referred back to the lower court for them to retry the case. Young and her counsel will have to look for such a previously used accommodation.

Your Turn

I am positive that many of you have experiences with accommodating workers, either for disability, protected class, or otherwise. What do you think of the ruling? Does it go along with or counter to your personal experience? Or what you think should be required by law?

I look forward to a vigorous debate on this one.

Image Credit: Canwest News

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