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 High Court UPS Ruling Means Changes To EEOC Guidance Share us on:​
By ​
Ben James Law360, New York (March 25, 2015, 7:35 PM ET) ­­ The ​
U.S. Supreme Court​
's decision Wednesday breathing new life into a pregnancy bias suit against ​
United Parcel Service Inc​
. won plaudits from worker advocates including the U.S. Equal Opportunity Commission, even though the ruling was critical of recent ​
EEOC​
pregnancy discrimination guidance that will now have to be changed. The high court's​
​
6­3 decision​
vacated a Fourth Circuit decision in UPS' favor in a Pregnancy Discrimination Act case brought by former delivery driver Peggy Young, who was denied light­duty work while pregnant in 2006. But Wednesday's decision said it didn't endorse either Young's or UPS' interpretations of the PDA and sent the matter back to the appeals court. EEOC Chairwoman Jenny Yang and general counsel David Lopez praised the ruling in an emailed statement Wednesday, with Yang calling it a “clear win for women and families” and Lopez labeling it a “significant win for the rights of pregnant workers.” However, the federal workplace bias watchdog acknowledged some conflict between majority's decision to overturn the Fourth Circuit — which had upheld summary judgment for UPS — and the pregnancy guidance the EEOC issued just two weeks after the Supreme Court agreed to hear Young's case. “The commission’s pregnancy discrimination guidance comports with some but not all aspects of the court’s decision. The commission will make necessary changes to the guidance in accordance with the decision,” the statement said, though it also noted that the guidance covered a range of issues not impacted by Wednesday's opinion. Among other things, the guidance addressed the PDA and light­duty bids, saying that the EEOC “rejects the position that the PDA does not require an employer to provide light duty for a pregnant worker if the employer has a policy or practice of limiting light duty to workers injured on the job and/or to employees with disabilities under the ADA.” “The EEOC clearly has to go back to the drawing board,” said Barry Hartstein, chairman of​
Littler Mendelson PC's EEOC and​
diversity practice. Justice Stephen Breyer, writing for the majority, said the guidance's “power to persuade” was severely limited and that the stance the agency had taken “was inconsistent with positions for which the government has long advocated.” “The import of this decision is that the court is saying, quite clearly, that it will require the EEOC to provide evidence of thorough consideration and, perhaps most importantly, consistency with earlier pronouncements or litigation positions,” said ​
Paul Hastings LLP partner Marc Bernstein. “The EEOC can't just change direction like the wind.” But Deborah Widiss, a professor at Indiana University's Maurer School of Law, who called the ruling “an important win for working women,” cautioned against making too much of the Young decision's impact on the EEOC's guidelines. “I think that it would be a mistake to think that the guidance, as whole, has been discredited,” Widiss said. Wednesday's decision is a clearly a positive development for Young, who has had her case revived, and, according to some observers, it is a good thing for working women across the board. “If you peel away all the larger questions about statutory interpretation and the intent of Congress, at the heart of this case is whether Ms. Young had a right to have her day in court, and the Supreme Court has said she does,” said Katherine Kimpel, a partner at​
Sanford Heisler LLP​
. The opinion stopped short of handing Young a win, saying both her interpretation of the PDA and UPS' interpretation were less than persuasive. But Kimpel, who represents employees, said “it's not a good day for UPS.” UPS said Wednesday it was confident it would be found not to have discriminated against Young under what it called the “newly announced standard” in Wednesday's decision. According to ​
Haynes and Boone LLP​
partner Felicity Fowler, the decision is neutral and, generally speaking, doesn't favor employee­plaintiffs or employer­defendants. The ruling clarified how courts handling PDA claims like Young's should handle summary judgment bids and said an individual pregnant worker who wants to show intentional discrimination through indirect evidence can do that using a framework laid out in the Supreme Court's 1973 McDonnell Douglas decision. However, some observers were surprised, and at least one lawyer was disappointed, that the Supreme Court didn't offer a definitive answer to the question of whether and when employers had to accommodate pregnant employees under the PDA. “I am shocked and dismayed by the court's refusal to decide the issue ... and in effect punt it back to the lower court to deal with,” said Philip Voluck, managing partner at ​
Kaufman Dolowich Voluck​
. “That really was the issue that everyone was waiting for guidance on.” But the ruling's impact for workers and employers will likely be muted by changes in the law — most notably the Americans with Disabilities Act Amendments Act of 2008 — that have taken place since the events underlying Young's lawsuit played out. Pregnancy isn't a disability on its own, and there's no accommodation obligation written into the PDA like there is in the ADA. But pregnancy­related impairments can qualify as disabilities, and the 2008 amendments expanded the definition of the term disability, thus broadening the ADA's protections. “We're already dealing with a heightened burden on employers because of those changes,” Fowler said. “Employers should be engaging in reasonable accommodation analysis with their pregnant employees just as a matter of course.” Many state laws also now require accommodations for pregnant workers, and companies are offering accommodations for pregnant workers voluntarily. UPS itself told the high court it would make temporary light­duty work available to pregnant workers with medically certified restrictions, starting in January. "Now, you're seeing state after state, and local jurisdiction after local jurisdiction, explicitly require accommodating pregnant workers,” said ​
Mintz Levin Cohn Ferris Glovsky & Popeo PC​
partner Mike Arnold. “The momentum seems to be shifting firmly in employees' favor.” Young is represented in the case by Samuel R. Bagenstos of the University of Michigan Clinical Law Program and Virginia attorney Sharon Fast Gustafson. Bagenstos argued for Young. UPS is represented by Mark A. Perry, Rachel S. Brass, Marisa C. Maleck, Kellam M. Conover and Caitlin J. Halligan ofGibson Dunn and Emmett F. McGee Jr. and Jill S. Distler of ​
Jackson Lewis PC​
. Halligan argued for UPS. The case is Young v. United Parcel Service Inc., case number 12­1226, in the Supreme Court of the United States. ­­Editing by Kat Laskowski and Christine Chun. All Content © 2003-2013, Portfolio Media, Inc.