Thursday, April 2, 2015

The ADAAA, Young v. UPS, and the new state of pregnancy accommodation law

In Young v. UPS, the Supreme Court created a framework for analyzing Title VII (including the Pregnancy Discrimination Act amendments) discrimination claims based on an employer's failure to accommodate pregnant employees. As usual... it's complicated. But the gist is that an employee may take a case to trial by merely showing that "the employer accommodates a large percentage of nonpregnant workers while failing to accommodate a large percentage of pregnant workers" - unless the employer has a "sufficiently strong" justification (whatever that means).

But, wait! What about the Americans with Disabilities Act (ADA), including the 2008 amendments (ADAAA)? As the Supreme Court noted in Young:
We note that statutory changes made after the time of Young’s pregnancy may limit the future significance of our interpretation of the Act. In 2008, Congress expanded the definition of “disability” under the ADA to make clear that “physical or mental impairment[s] that substantially limi[t]” an individual’s ability to lift, stand, or bend are ADA-covered disabilities. ADA Amendments Act of 2008, 122 Stat. 3555, codified at 42 U. S. C. §§12102(1)–(2). As interpreted by the EEOC, the new statutory definition requires employers to accommodate employees whose temporary lifting restrictions originate off the job. See 29 CFR pt. 1630, App., §1630.2(j)(1)(ix). We express no view on these statutory and regulatory changes.
So, how about it? Employers must accommodate pregnant employees under the ADA? Not so fast!

The ADA defines "disability" as a "physical or mental impairment that substantially limits one or more of the major life activities of such individual." Here's the problem for pregnant employees: The Appendix to EEOC's regs provides interpretive guidance telling us that, "Other conditions, such as pregnancy, that are not the result of a physiological disorder are also not impairments." Therefore, pregnancy alone is not a disability.

But wait . . . there's more! "However, a pregnancy-related impairment that substantially limits a major life activity is a disability." The EEOC's Enforcement Guidance on Pregnancy Discrimination and Related Issues provides more info:
Some impairments of the reproductive system may make a pregnancy more difficult and thus necessitate certain physical restrictions to enable a full term pregnancy, or may result in limitations following childbirth. Disorders of the uterus and cervix may be causes of these complications. For instance, someone with a diagnosis of cervical insufficiency may require bed rest during pregnancy. One court has concluded that multiple physiological impairments of the reproductive system requiring an employee to give birth by cesarean section may be disabilities for which an employee was entitled to a reasonable accommodation. 
Impairments involving other major bodily functions can also result in pregnancy-related limitations. Some examples include pregnancy-related anemia (affecting normal cell growth); pregnancy-related sciatica (affecting musculoskeletal function); pregnancy-related carpal tunnel syndrome (affecting neurological function); gestational diabetes (affecting endocrine function); nausea that can cause severe dehydration (affecting digestive or genitourinary function); abnormal heart rhythms that may require treatment (affecting cardiovascular function); swelling, especially in the legs, due to limited circulation (affecting circulatory function); and depression (affecting brain function). 
In applying the ADA as amended, a number of courts have concluded that pregnancy-related impairments may be disabilities within the meaning of the ADA, including: pelvic inflammation causing severe pain and difficulty walking and resulting in a doctor's recommendation that an employee have certain work restrictions and take early pregnancy-related medical leave; symphysis pubis dysfunction causing post-partum complications and requiring physical therapy; and complications related to a pregnancy in a breech presentation that required visits to the emergency room and bed rest. In another case, the court concluded that there was a triable issue on the question of whether the plaintiff had a disability within the meaning of the amended ADA, where her doctor characterized the pregnancy as "high risk" and recommended that the plaintiff limit her work hours and not lift heavy objects, even though the doctor did not identify a specific impairment.
So, the pregnancy itself is not a disability... but a pregnancy-related impairment may be a disability.

Where does this leave employers? Probably confused and unable to discern whether the law requires them to accommodate a pregnant employee or not. But we have two primary initial inquiries:

1. Does the employer accommodate a large percentage of nonpregnant workers? (Young v. UPS); and

2. Does the employee have a "pregnancy-related impairment" that rises to the level of a disability? (ADAAA).

If the answer to either of those questions is "yes," then the employer must decide whether it can reasonably accommodate the employee without "undue hardship" (ADAAA) or if it has a "suffciently strong" justification for not doing so (Young v. UPS) (and a complicated list of other issues). Employers may want to consult a dart-throwing chimpanzee employment lawyer for this complex analysis.