BUSINESS( NO PLAGARISM A+ WORK, ON TIME)

SUMMER 2015 111©2015 BY TANYA M. MARCUM AND SANDRA J. PERRY

It Doesn’t Work At Work: Pregnancy Discrimination in the Workplace By Tanya M. Marcum and Sandra J. Perry

TANYA M. MARCUM is an Associate Professor of Law at Bradley University, Foster College of Business. Her work experience includes ten years as in-house legal counsel for the Internal Revenue Service and nine years teaching at Cen- tral Michigan University. She received a J.D. degree from the Thomas M. Cooley Law School and a B.S. degree in Business from Central Michigan University.

SANDRA J. PERRY is a Professor of Law at Bradley University, Foster College of Business. She received the College’s Innovation in Teaching Award in 2009, and her published works include over 30 refereed journal articles. She received a J.D. degree from Southern Illinois Univer- sity School of Law and a B.S. degree from Bradley University.

“I was forced to choose between a healthy pregnancy and my paycheck. No pregnant worker should have to make that decision.”

~Candis Riggins, former Walmart employee.1

I. Introduction Imagine being pregnant and unable to take a needed bathroom break while at

work. Imagine being pregnant and unable to receive a work accommodation from the employer despite a doctor’s order restricting lifting over ten pounds. Imagine being eight months pregnant and required to stand at work all day as a cashier rather than sitting on a stool while checking out customers. Th ese types of situations are unique only to women because of their ability to be both pregnant and an employee. Generally, pregnant women are not limited in their activities, either in their personal lives or for their employment. Th ere are times, however, when some pregnant employees fi nd themselves needing tem- porary workplace accommodations due to the medical needs associated with the pregnancy. Many employers do not make these accommodations.Women have long struggled for social and workplace equality. Federal laws have at- tempted to reduce and remedy these struggles, but have not eliminated the social, legal, economic, and workplace battles for women wishing to become pregnant, are pregnant, or have recently been pregnant. Between 2010 and 2013, female workers fi led 15,298 complaints with allegations of discrimina- tion due to pregnancy with the Equal Employment Opportunity Commission [EEOC].2 As recently as March 25, 2015, the U.S. Supreme Court issued its opinion in a case involving pregnancy discrimination reversing and remanding the Fourth Circuit’s decision in Young v. United Parcel Service, Inc.3 Th is case involved a pregnant part-time employee with a lifting restriction and a refusal by her employer to accommodate her request to transfer to a light-duty posi- tion for the length of her pregnancy.4 Th e decision of the U.S. Supreme Court is discussed below.

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Two legal theories are usually advanced to make the ar- gument that female employees who are pregnant and wish to remain in the workplace should be treated fairly by their employers. Th e fi rst theory is that any unfair treatment of the pregnant worker is a form of sex discrimination in violation of Title VII of the Civil Rights Act. Th e second theory is that pregnancy-related needs or accommodations should be made under the Americans with Disabilities Act Amendments Act of 2008 as amended.

Th is article will examine discrimination against women in the workplace due to pregnancy-related issues, the court cases attempting to resolve the employment disputes, and legislative reactions to the treatment by employers and courts.

II. Prelude to an Act: Court Decisions Leading to the Need for Reform Historically women have been treated diff erently in the workplace than their male counterparts. Pregnant women in the workforce face two diff erent challenges. Th e fi rst is discrimination in hiring or being fi red based on the employee’s pregnancy or ability to become pregnant. Th e second, and the focus of this article, is the pregnant employ- ee’s need to request an accommodation from the employer to facilitate continued work during the pregnancy.

In 1874, the state of Massachusetts limited the em- ployment of women and children.5 An early Oregon law restricting the working hours of women in order to protect the health of the women was upheld by the U.S. Supreme Court.6 Th e unanimous Court stated,

[t]hat woman’s physical structure and the perfor- mance of maternal functions place her at a disad- vantage in the struggle for subsistence is obvious. Th is is especially true when the burdens of moth- erhood are upon her. Even when they are not, by abundant testimony of the medical fraternity con- tinuance for a long time on her feet at work, repeat- ing this from day to day, tends to injurious eff ects upon the body, and as healthy mothers are essential to vigorous off spring, the physical well-being of woman becomes an object of public interest and care in order to preserve the strength and vigor of the race.7

In the 1940’s, a government agency recommended that pregnant women refrain from working beginning six weeks before delivery and continuing until two months after.8 “Several states adopted laws based on this recommenda- tion, prohibiting employers from allowing women to work

for a certain period of time before and after childbirth, for the sake of maternal and child health.”9

From 1950 to 1970, many state statutes banned the hir- ing of women before and after the delivery of their babies, particularly women’s employment in educational institu- tions. Th ese laws were predicated upon preconceived notions of weakness and the proper rearing of children.10 By the mid-1960’s every state had some legislation either protecting or limiting women in the labor market.11

A. Equal Protection and Due Process Clauses of the Fourteenth Amendment to the U.S. Constitution

In 1974, the U.S. Supreme Court heard a case challeng- ing the constitutionality of a California disability program that excluded from coverage certain disabilities resulting from pregnancy. In Geduldig v. Aiello,12 the U.S. Supreme Court held in a 6-3 vote that California’s exclusion from coverage of certain disabilities attributable to pregnancy did not violate the Equal Protection Clause of the Fourteenth Amendment. Th e California disability insurance program was entirely self-funded by the required contribution of one percent of wages annually by participating employees.13 Th e program functioned according to insurance concepts; not every disabling condition was covered.14 Disabilities of less than eight days were not covered unless the employee was hospitalized and no benefi ts were payable beyond 26 weeks for a single disability.15 No benefi ts were payable if the employee were committed as an alcoholic, drug addict, or sexual psychopath.16 And no benefi ts were payable for disabling conditions attributable to pregnancy.17

Four female employees who had paid into the disability program and were denied benefi ts for disabilities resulting from their pregnancies challenged the constitutionality of the program.18 At the U.S. District Court, the plaintiff s won.19 Th at court held that the pregnancy-related exclu- sion was “not based on a classifi cation having a rational and substantial relationship to a legitimate state purpose.”20

On appeal, the U.S. Supreme Court found that the Cali- fornia disability insurance program did not discriminate against any persons or groups in violation of the Constitu- tion, even though only women could become pregnant and be denied benefi ts for that reason.21 Since the court found no discrimination against any class of persons such as women, the court applied the lowest level of scrutiny, rational basis to a permissible state end, and found the law constitutional. Th e state had a legitimate interest in maintaining the self-supporting nature of the program and limiting the disabilities that were covered so that it would “not unduly burden participating employees.”22

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In Cleveland Board of Education v. LaFleur,23 the U.S. Supreme Court ruled in a diff erent direction. School districts in Cleveland, Ohio and in Virginia had policies that pregnant teachers were required to stop teaching by their fourth or fi fth months of pregnancy.24 Th e Cleveland rules did not allow a teacher to return to teaching until the next regular school semester after her child was three months old.25 Both districts required medical certifi cation that the teachers were fi t to return to work.26 Th e asserted reasons for the policies were the school districts’ interests in continuity of instruction,27 protection of the health of the teacher and her unborn child,28 physical competence of the classroom teacher,29 and administrative convenience.30 In these consolidated cases, the Court held that these practices were a violation of the Due Process Clause of the Fourteenth Amendment.31

Because the school district policies in question impacted personal choices in matters of family life, the Due Process Clause of the Fourteenth Amendment protected these fundamental liberties.32 As such, school district policies must not “needlessly, arbitrarily, or capriciously impinge upon this vital area of a teacher’s constitutional liberty.”33 Although the school districts had a signifi cant interest in continuity of instruction so that starting leave at the end of a semester or returning to work at the beginning of a semester might be a rational, the Court found that the four or fi ve month mark of a teacher’s pregnancy as the required time to begin leave was not rational, and in fact, likely interfered with the stated goal of continuity of instruction.34 As to the asserted interest in keeping physically unfi t teachers out of the classroom, the Court found the irrebuttable presumption that any teacher at the fourth or fi fth month of pregnancy to be unfi t to perform was a violation of the Due Process Clause.35 Further, administrative convenience, standing alone, was insuffi cient to justify a policy that was otherwise a violation of due process.36

Although the Sixth Circuit Court of Appeals invalidated the Cleveland rules on the basis of the Equal Protection Clause,37 the high court decided the cases based on the Due Process Clause only.38 Justice Powell, in his concur- rence, believed the court should have utilized the Equal Protection Clause for its analysis. While he agreed that the means used by the school districts in questions to achieve their legitimate ends were too attenuated to be supported, he believed that some “class-wide rules for pregnant teachers are constitutional under traditional equal protection standards.”39 Th e Court’s ruling limited the discretion of the school districts with its focus on the need for individualized treatment of the pregnant teach- ers, in his opinion.40

B. Title VII of the Civil Rights Act of 1964 Th e U.S. Supreme Court held that pregnancy discrimina- tion was not sex discrimination under the Civil Rights Act of 1964 in General Electric Co. v. Gilbert.41 Th e Court held that the private employer’s disability insurance plan that allowed disability benefi ts for employees with temporary disabilities but excluded benefi ts for pregnancy-related disabilities was not sex discrimination in violation of Title VII of the Civil Rights Act of 1964.42

General Electric’s employee benefi t package provided for non-occupational sickness benefi ts to all employees but specifi cally excluded any disabilities due to the pregnancy of any of its female employees.43 In a class action suit, sev- eral female employees who had submitted benefi t claims to their employer and were denied sought declaratory relief that the plan violated Title VII of the Civil Rights Act, requesting injunctive and monetary relief.44 Th e District Court issued the declaratory judgment fi nding that “while not necessarily either a ‘disease’ or an ‘accident,’ pregnancy was disabling for a period of six to eight weeks.”45 Th e Court of Appeals affi rmed the decision.46 Th e U.S. Su- preme Court reversed, fi nding that the employer’s benefi ts plan was not a form of sex discrimination.47

Much like the Geduldig v. Aiello case,48 the Court found that the exclusion of pregnancy-related disability benefi ts was a risk exclusion designed to keep the insurance plan solvent, and “not gender-based discrimination at all.”49 Even though only women can become pregnant, the court stated “it is in other ways signifi cantly diff erent from the typical covered disease or disability.”50 Unlike challenges under the Equal Protection Clause, Title VII prohibits both intentional discrimination and discrimination in which a facially neutral requirement creates a disparate impact on a protected class of employees. However, in neither Geduldig nor in General Electric did the women challenging the pregnancy exclusion attempt to demon- strate discrimination based on disparate impact.51 In all likelihood, the women believed that since only women can become pregnant, an exclusion based on pregnancy was, by defi nition, a sex-based discrimination. Th e Court declined to follow the administrative guidance of the EEOC52 and rejected “the unanimous conclusion of all six Courts of Appeal”53 that found exclusion of pregnancy-related dis- abilities to violate Title VII.

In response to the U.S. Supreme Court’s decision in General Electric v. Gilbert, Congress enacted the Pregnancy Discrimination Act.54 Th e Court “contravened the intent of Congress in enacting title VII of the Civil Rights Act, that all individuals should be fully protected against unjust discrimination, including pregnant workers.”55 Congress basically agreed with the dissenting opinions in

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the Gilbert case and added pregnancy to the defi nition of sex discrimination in Title VII.56

III. The Main Act - The Pregnancy Discrimination Act and Related Laws

A. The Pregnancy Discrimination Act

To alleviate the struggles women experienced in the work- place that were diff erent than their male counterparts due to pregnancy and pregnancy related medical issues, the U.S. Congress passed the Pregnancy Discrimination Act of 1978 [PDA]. Th e PDA was a legislative amendment to Title VII of the Civil Rights Act of 1964 to clarify that discrimination based on sex included pregnancy discrimi- nation. Specifi cally, the PDA prohibits discrimination on account of

pregnancy, childbirth, or related medical condi- tions; and women aff ected by pregnancy, child- birth, or related medical conditions shall be treated the same for all employment-related purposes, in- cluding receipt of benefi ts under fringe benefi t pro- grams, as other persons not so aff ected but similar in their ability or inability to work.57

Th e main purpose of Title VII is to provide equal oppor- tunities in employment to all individuals by prohibiting discrimination “with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.”58 Th e PDA expressly provides that “women aff ected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes… as other persons not so aff ected but similar in their ability or inability to work.”59 Th is language has proven problem- atic to pregnant workers, as discussed in the next section. When explaining the possible approaches to interpreting these two clauses together, two scholars recently noted:

Th e relationship between clause one and clause two might be viewed in a number of diff erent ways. Clause two might be described as: (1) setting the limits of what amounts to pregnancy discrimina- tion in clause one (e.g., defi ning what it means to discriminate on the basis of pregnancy); (2) describ- ing the remedy to a violation of clause one (e.g., once a plaintiff proves pregnancy discrimination, the remedy is to treat pregnant women the same as others similar in their ability to work); (3) creat-

ing a defense to a pregnancy discrimination claim (what might otherwise be pregnancy discrimina- tion is not unlawful if pregnant women are treated the same as others similar in ability to work); or (4) establishing an independent violation of the PDA if pregnant workers are treated worse than other workers similar in their ability to work.60

Courts have interpreted the working relationships of these clauses in several of these ways, thus causing con- fusion in the workplace for both pregnant workers and their employers.

Th e PDA does not, however, “’protect a pregnant employee from being discharged for being absent from work even if her absence is due to pregnancy or to complications of her pregnancy, unless the absences of other nonpregnant employees are overlooked.’”61 Th e PDA does not require the employer to give preferential treatment to its pregnant employees. Some believe that an accommodation by an employer on behalf of the pregnant employee amounts to preferential treatment.

Th ere are two types of workplace accommodations usually made or requested by pregnant employees. Th e fi rst is one easily done in many types of employment–– pregnant employees change their work habits to allow for the pregnancy. For example a pregnant employee having to drink more water or go to the bathroom more frequently simply does it. Th e second type of accom- modation is a request by the employee to the employer to change or alter a work requirement of the employ- ment such as a restriction on lifting. In addition, some employees request short-term leave from the workplace with the expectation of returning to their position.

B. The Family Medical Leave Act

Th e Family Medical Leave Act [FMLA]62 is a second act that also provides some protections for the pregnant worker. It provides the pregnant worker with up to 12 weeks of unpaid leave for the birth of her child, or for a “serious health condition” arising from the pregnancy.63 Reasonable accommodations are irrelevant to the FMLA. If the pregnant employee requests leave under the FMLA it must be granted as long as the employee meets the req- uisite criteria. Th ere is no undue hardship defense available to the employer under the FMLA. Enforcement of this statute is by the U.S. Department of Labor.64

There are some limitations to the FMLA for the pregnant employee. First, the employer does not have

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to pay the employee while on FMLA leave.65 Second, some employers require that the pregnant employee take FMLA leave rather than stay in the workplace during their pregnancy. Many times this leave is forced upon the employee causing a choice for the employee whether to take the unpaid leave or be fi red. Either way there is likely no pay. Allowing for employers to hide behind the FMLA and require pregnant workers to take leave rather than making a workplace accommodation allows for the exclusion of pregnant workers from the workforce.66

Many pregnant women need to work in order to support their families. In addition, the leave under the FMLA after the birth of the child may be reduced due to intermittent leave during the course of the pregnancy.67 Some workers are not protected by the FMLA and thus may lose their jobs.68

C. The Americans With Disabilities Act as Amended

Under the Americans with Disabilities Act Amendments Act of 2008 [ADAAA],69 an employee qualifi es for a rea- sonable accommodation if he or she has a disability. Th e ADAAA broadened the coverage of the Americans with Disabilities Act [ADA]70 by including temporary impair- ments and less severe impairments that substantially limit life activities within the defi nition of “substantially limit- ing” and “major life activity”. Th is broadened defi nition would expand the types of disabilities that employers are required to reasonably accommodate in the workplace.

While pregnancy itself is not a disability according to the ADA, many pregnant women experience temporary com- plications during their pregnancies involving the health of the mother, the baby, or both.71 Some women have pre-pregnancy health problems that may complicate the pregnancy. Other women experience complications that arise during the pregnancy. In certain circumstances, the ADA may off er some protections for the pregnant worker if she is experiencing a medical complication during the pregnancy. A pregnancy complication may qualify as a disability under the ADA.

A disability is defi ned as “a physical or mental impair- ment that substantially limits one or more major life activi- ties.”72 However, a normal pregnancy is not a disability and the EEOC has long stood by this statement.73 However, pregnancy complications could lead to a disability. An ex- ample might be a lifting restriction.74 A disabled employee is entitled to a reasonable accommodation. Th e question remains as to what qualifi es as a reasonable accommo- dation for a woman with a temporary disability due to pregnancy that is not an undue hardship to her employer.

Situations for pregnant workers are decided on a case-by-case basis. Moreover, courts in diff erent federal districts have decided diff erently the issue of whether complications arising from pregnancy are disabilities under the ADA. For example, a federal court in New Hampshire determined that complications arising from ovarian cysts during pregnancy were not “physical impairments” under the ADA.75 In contrast, a federal court in New York decided that “spotting, leaking, cramping, dizziness, and nausea” caused by pregnancy may be considered physical impairments or perceived impairments for purposes of the ADA.76

IV. Post Act Era: Cases Narrowing the Scope of Protection

After the enactment of the PDA, the courts were faced with interpreting the extent to which the law applied to various employment disputes involving pregnant workers. Most of these disputes involved interpretation of the term “related” to pregnancy. In addition, claims have alleged not only violations of the PDA, but also violations of the ADA.

A. Various Cases in State and Federal Courts In the case of Miller-Wohl Co. v. Commissioner of Labor and Industry,77 Tamara Buley was hired by Miller-Wohl on August 1, 1979 to work in its Th ree Sisters store.78 She missed several days of work during her fi rst month of em- ployment due to early-pregnancy morning sickness.79 She was fi red on August 27, 1979 for violating the employer’s policies regarding sick leave that allowed sick leave only after one year of employment.80 She fi led a complaint with the Montana Commissioner of Labor and Industry alleging a violation of the Montana Maternity Leave Act.81 Th e Commission ruled that the state statute was violated and ordered the employer to reinstate the employee and to pay her $6,573.60 in back pay plus penalties.82 Th e em- ployer sought declaratory judgment that the federal PDA preempted the Montana state law.83 Th e federal district court ruled against preemption of the federal statute over the state statute.84 Th e Ninth Circuit vacated the decision of the district court due to lack of jurisdiction.85 Th e case then proceeded in state court and the order of the Com- missioner was reversed.86 Th e Montana Supreme Court87 later reversed again and held that the employer violated both the PDA and the Montana state statute when it fi red Buley. Th e employer’s appeal to the U.S. Supreme Court was not granted.

In Troupe v. May Department Stores,88 a pregnant sales employee experienced severe morning sickness during her

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third trimester that caused her to be tardy to work several times. She was placed on probation by her employer.89 After the probationary period ended and on the day before the employee was to begin maternity leave, she was fi red and informed by her supervisor that she was being fi red because the supervisor believed that the plaintiff would not return to work after her pregnancy leave.90 Although the plaintiff was able to show the discrimination by her super- visor, she ultimately did not prevail because she was unable to show that her tardiness was treated any diff erently than the tardiness of other non-pregnant employees.91

In another Seventh Circuit case, an employee was forced to take leave under the FMLA leave by her employer over the employee’s objections. While Ms. Arizanovska was pregnant for the second time, her doctor placed her on temporary light-duty restrictions to prevent complications in the pregnancy.92 Th e light-duty restrictions required that she lift no more than ten pounds, 40 pounds less than the required lifting amount in the Wal-Mart policy.93 At the time of the lifting restriction, she was working as a stocker for Wal-Mart. Although she could not perform the essential functions of the stocker position because of the lifting restriction, she requested a position in the clothing department folding clothes, a position that did not exist.94 She was denied the request and placed on unpaid leave.95 Th e plaintiff fi led a lawsuit alleging that her employer’s policy failed to accommodate her during her pregnancy and retaliated by placing her on unpaid leave.96 Th e federal district court granted Wal-Mart’s motion for summary judgment determining that the plaintiff did not present a prima facie case of discrimination. She appealed to the Seventh Circuit and it affi rmed the lower court’s decision.97

Key issues for the Seventh Circuit were whether the plaintiff suff ered a materially adverse employment action due to her pregnancy when she was off ered no accom- modation by her employer, forcing her to take an unpaid leave of absence due to her inability to perform essential job functions, and whether Wal-Mart retaliated against the plaintiff for fi ling the EEOC complaint. In its analysis regarding pregnancy discrimination, the Court examined the facts of the case to determine if Arizanovska met the prima facie case of discrimination:

(1) that she was a member of a protected class; (2) that she was performing her job satisfactorily; (3) that she suff ered an adverse employment action; and (4) that Wal-Mart treated a similarly-situated individual outside Arizanovska’s protected class more favorably. Dear v. Shinseki, 578 F.3d 605, 609 (7th Cir. 2009).98

Th e focus of the Court became element four. Th e plaintiff could not prove that two other pregnant African- American employees in her protected class were treated more favorably or that a similarly situated employee out- side of her protected class was treated more favorably.99 Th e plaintiff also pointed to the policy of Wal-Mart that allowed accommodations for employees injured outside of work but not to pregnant employees. Since Wal-Mart did not create positions for nonpregnant employees, the Court determined Wal-Mart was not required to make such an accommodation for pregnant employees.100

Th e plaintiff argued retaliation occurred after she fi led her complaint with the EEOC.101 She argued that the adverse action of retaliation occurred when Wal-Mart placed her on unpaid leave.102 Even though the plaintiff suff ered an adverse action after engaging in a protected activity (complaint with the EEOC), the Court found that there was no causal relation between the fi ling of the EEOC complaint and Wal-Mart’s decision to place the plaintiff on unpaid leave until the plaintiff could perform the essential functions of the stocking position.103

In yet another case, EEOC v. Houston Funding,104 the court was faced another common situation faced by many women after pregnancy––whether fi ring an employee due to lactation or expressing breast milk is a form of sex discrimination. Th e district court granted summary judgment to the employer.105 On appeal, the Fifth Circuit Court of Appeals vacated the decision and remanded the case. “Because discriminating against a woman who is lactating or expressing breast milk violates Title VII and the PDA, we fi nd that the EEOC has stated a prima facie case of sex discrimination with a showing that Houston Funding fi red the employee because she was lactating and wanted to express milk at work.”106 Th e appellate court found that lactation was a medical condition related to pregnancy.107 Th e case was settled prior to the retrial.108

In a 2013 Sixth Circuit decision involving a no-lift restriction for a pregnant nurses’ aide and her subsequent dismissal by the employer, the district court granted sum- mary judgment to the employer. In Latowski v. Northwoods Nursing Center,109 the Sixth Circuit reversed and remanded, fi nding suffi cient evidence that the employer discriminated against the employee on the basis of her pregnancy.110 As a nurses’ aide, her job included lifting of patients in and out of beds, wheelchairs, and showers.111 Th e Court stated that the employee presented evidence that her employer treated other nonpregnant nurses’ aides with similar lifting restrictions more favorably by assigning them to light duty positions even though the need for the lifting restriction was work-related.112 Th e Sixth Circuit found that these workers were similarly situated in their ability to work

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because they were placed under lifting restrictions of up to fi fty pounds.113 However, the ADA disability claims were dismissed.114 Th e Court relied on an earlier Sixth Circuit case, wherein an employee of the Postal Service was held to be entitled to a light duty work assignment during her pregnancy as a temporary accommodation because the employer provided lifting and sitting accommodations to other employees on light-duty status.115 On April 23, 2014 the District Court in the Latowski case issued a stay116 pend- ing the U.S. Supreme Court decision in Young v. United Parcel Service, Inc.,117 discussed below.

In a Tenth Circuit case, EEOC v. Horizon/CMS Health- care Corp., the EEOC alleged that the employer denied pregnant employees the opportunity to work light duty when the employees became temporarily unable to per- form heavy lifting due to pregnancy, even though light duty was made available to other non-pregnant workers of the employer.118 Each of the pregnant employers was fi red, laid off , or placed on unpaid leave.119 Although the employer argued that the employees were not qualifi ed to perform the accommodated positions sought, the EEOC was able to prove otherwise.120 Th e Court held that the employer treated at least one non-pregnant employee, who was temporarily disabled as a result of injuries she suff ered off the job, more favorably than pregnant employees.121

Th ese cases have lead to a split among the federal cir- cuits regarding the application of the PDA to pregnant employees seeking a temporary accommodation.

B. U.S. Supreme Court Cases Th e U.S. Supreme Court has heard several cases since the enactment of the PDA that have set the tone for the ap- plication of the PDA by both courts and employers. First, in the case of Newport News Shipbuilding & Dry Dock Co. v. EEOC,122 the Court determined that an employer must provide pregnancy-related insurance coverage for the spouses of its male employees if the employer provides its female employees with insurance benefi ts covering pregnancy-related medical conditions.123 In another case involving lead exposure and its potential harm to fetus, an employer created a “fetal protection policy” which prevented women who were either pregnant or capable of pregnancy from working in jobs where lead exposure was present.124 Th e Court determined that the policy was discriminatory against women, applied the PDA, and stated that the PDA was meant “to protect female work- ers from being treated diff erently from other employees simply because of their capacity to bear children.”125

In California Federal Savings v. Guerra, a California statute was challenged by an employer who hired a full- time replacement worker for its pregnant employee.126 Th e

state statute provided up to four months of pregnancy disability leave for employees was challenged on the basis of federal preemption by the PDA.127 In examining the intent of Congress, the Court found that Congress did not intend to preempt state law.128

In the case of AT&T v. Hulteen, the Supreme Court was faced with the issue of whether an employer violates the PDA “when it pays pension benefi ts calculated in part under an accrual rule, applied only prior to the PDA, that gave less retirement credit for pregnancy leave than for medical leave generally.”129 AT&T provided benefi ts and pension based on a seniority system that calculated seniority minus any time when an employee was on un- credited leave.130 For a period of time, disability leave was given credit in the calculation, but maternity leave was not.131 When AT&T changed its calculations to include maternity leave after the enactment of the PDA, it was not retroactive in the calculations.132 Th e precedent was split among circuits.133 Th e Supreme Court held that the employer’s pension and benefi t system was a bona fi de system, with no intent to discriminate and upheld its calculations excluding pre-PDA maternity leave.134

Th e most recent case involving the denial of accom- modations to a pregnant worker is Young v. United Parcel Service, Inc.135 Peggy Young became pregnant in 2006 and her doctor restricted her lifting to no more than 20 pounds for the fi rst 20 weeks of her pregnancy.136 Young was an employed by United Parcel Service [UPS] as a truck driver.137 She asked UPS for a short term tempo- rary accommodation which was denied.138 She was told that UPS did not give light duty accommodations for pregnancy.139 Young was placed on unpaid leave and she lost her medical benefi ts.140 She brought suit alleging intentional discrimination, arguing that the PDA re- quires employers to treat pregnant employees the same as “other persons not so aff ected but similar in their ability or inability to work.” 141 Young introduced evidence that “other persons” at UPS who were accommodated and were similar in their ability or inability to work included three categories of individuals: (1) those who were injured on the job; (2) those who were considered disabled under the Americans with Disabilities Act142 [ADA]; and (3) those who had lost their Department of Transportation [DOT] certifi cations and could not drive.143 She also introduced evidence that others with injuries sustained off work or of unknown origin were accommodated.144 Nevertheless, the U.S. District Court granted summary judgment in favor of UPS, fi nding that Young could not provide suffi cient direct evidence of intentional discrimination or satisfy the elements of a prima facie case under the McDonnell Douglas framework.145

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Th e Fourth Circuit Court of Appeals narrowly inter- preted the PDA provision and held that the plaintiff could not prove the PDA claim because she was unable to identify employees who were not pregnant, but that still received an accommodation for a temporary lifting restriction due to a medical condition that arose outside of the employment.146 Th e Court also found that UPS’s application of its accommodation policy was not moti- vated by discrimination but was pregnancy-blind.147 In its reasoning, the Court stated that allowing a pregnant worker special treatment without making the showing of other nonpregnant employees receiving accommodations would lead to more favorable treatment to pregnant work- ers.148 Th e Court determined that this was inconsistent with the language in the PDA.149 Th is decision widened the existing confl ict between circuits.150

Th e U.S. Supreme Court granted certiorari July 1, 2014.151 Th e issue before the Supreme Court was whether, and under which circumstances, the PDA requires an employer that provides work accommodations to non- pregnant employees with work limitations to provide work accommodations to pregnant employees who are “similar in their ability or inability to work.”152 In an interesting twist, UPS recently changed its policy regarding accommodations for its pregnant workers. Beginning January 1, 2015, “the company will off er temporary light duty positions not just to workers injured on the job, which is current policy, but to pregnant workers who need it as well.”153

Oral arguments were held on December 3, 2014 before the U.S. Supreme Court. Th e Court issued its opinion on March 25, 2015 reversing and remanding the case back to the Fourth Circuit for further proceedings consistent with the Supreme Court’s opinion. Justice Breyer delivered the opinion of the Court in which Justices Roberts, Ginsburg, Sotomayor, and Kagan joined. Justice Alito fi led a concur- ring opinion and Justice Scalia fi led a dissenting opinion with Justices Kennedy and Th omas joining. Justice Ken- nedy also fi led a dissenting opinion.

In the majority opinion, Justice Breyer noted the two clauses of the PDA and concluded that neither party in- terpreted the law correctly. Th e fi rst clause clarifi es that the term “because of sex” includes pregnancy, childbirth, or related medical conditions.154 Th e second clause states that “women aff ected by pregnancy, childbirth, or related medi- cal conditions shall be treated the same for all employment- related purposes … as other persons not so aff ected but similar in their ability or inability to work.”155 Th e Court explained the statutory construction issues as follows:

Does this clause mean that courts must compare workers only in respect to the work limitations that

they suff er? Does it mean that courts must ignore all other similarities or diff erences between preg- nant and nonpregnant workers? Or does it mean that courts, when deciding who the relevant “other persons” are, may consider other similarities and diff erences as well? If so, which ones?156

Young argued that the former interpretation was the correct one. She contended that the workers should be compared only on the basis of similarity in their ability or inability to work. Th e Court noted that Young’s reply brief argued that the PDA requires giving “the same ac- commodations to an employee with a pregnancy-related work limitation as it would give that employee if her work limitation stemmed from a diff erent cause but had a similar eff ect on her inability to work.”157 Th e Court disagreed with this interpretation, stating that it would ac- cord pregnancy a “most-favored-nation” status and would require an employer to off er the same accommodations to a pregnant employee as it might off er to an employee who has a particularly hazardous job, holds a key position, has greater seniority, or is over 55.158

Th e Court also disagreed with the interpretation of the PDA off ered by UPS. UPS contended that the second clause “does no more than defi ne sex discrimination to include pregnancy discrimination” and would allow an employer to deny an accommodation to a pregnant em- ployee if it also denied accommodations to other employees within a facially neutral category such as off -the-job inju- ries. Th e Court believed that the interpretation argued by UPS would not accomplish an important purpose of the PDA, which was to overturn both the interpretation and reasoning of the Court in General Electric Co. v. Gilbert.159

Th e Court considered the EEOC Guidance on this matter and accorded it no deference at all. Th e EEOC Guidance issued shortly after the PDA was passed pro- vided no help in resolving the ambiguity of the term “other persons” in the second clause of the PDA, according to the Court.160 A more recent EEOC Guidance was issued in July of 2014.161 Th at guidance seemed to uphold the “most-favored-nation” status of pregnancy that Justice Breyer said was an improper interpretation of the PDA, providing that an employer may not make distinctions based on the source of the employee’s limitations. Th e EEOC’s interpretation of the PDA states that an employer that provides light duty for an employee with on-the-job work injuries or who are disabled under the ADA must similarly provide light duty for an employee who is preg- nant.162 Th is is the same interpretation of the PDA off ered by Young and rejected by Justice Breyer. In denying any deference to the EEOC Guidance, Justice Breyer stated

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that the current guidelines lacked consistency, thorough- ness of consideration, and poor timing and took positions that were new compared with previous guidelines and were inconsistent with previous positions the government has taken in this regard.163

Th e Supreme Court held that Young had made out a prima facie case of intentional discrimination on the basis of sex and pregnancy under the McDonnell Douglas164 framework: (1) that she belongs to a protected class; (2) that she sought an accommodation for her pregnancy; (3) that the employer denied her an accommodation; and (4) that the employer accommodated others that were similar in their ability or inability to work. Under the McDonnell Douglas framework, the burden then shifts to the employer to show a legitimate, nondiscriminatory reason for deny- ing the accommodation. Th e Court stated that normally, the employer cannot meet its burden by claiming that it is more expensive or less convenient to add pregnant women to the category of those similar in their ability or inability to work.

If the employer off ers an apparently legitimate reason or reasons, the plaintiff may try to show that the proff ered reasons are pretextual. According to the majority opinion by Justice Breyer, the plaintiff may reach the jury on this issue by providing suffi cient evidence that the employer’s policies impose a signifi cant burden on pregnant workers and that the employer’s reasons are not suffi ciently strong to justify the burden, therefore giving rise to an inference of intentional discrimination. On the defendant’s motion for summary judgment, the trial court must take the plaintiff ’s allegations as true and in the light most favorable to her. On that basis, Young can show that UPS accommodated most non-pregnant employees with lifting limitations but did not accommodate any pregnant employees with lifting restrictions, creating a genuine issue of material fact on the fourth prong of the McDonnell Douglas framework. Th e Court made no determination whether Young created a genuine issue of material fact on the question of pretext, leaving that decision to the Fourth Circuit on remand.

V. The Current State of Affairs: Tackling Persistent Problems

A. State Legislative Action and Municipal Ordinances

At the state level there is a new wave of employment laws that require reasonable accommodations for pregnant workers. Two states––Hawaii165 and Louisiana166–– were pioneers in providing some additional legislative

protections to the pregnant employee. Since January of 1991, a pregnant employee in Hawaii can request reason- able accommodations from her employer for a “disability due to and resulting from pregnancy, childbirth, or related medical conditions.”167 It is also unlawful for an employer in Hawaii to discriminate against a female worker who breastfeeds or expresses milk in the workplace.168 In Loui- siana, if an employer has a policy allowing for the transfer of temporarily disabled workers to a position with less strain or hazards, then the same employer must treat a pregnant female employee similarly if she requests such a transfer as long as it is a reasonable accommodation for the employer.169

Several other states––Illinois,170 Alaska,171 California,172 Connecticut,173 Delaware,174 New Jersey,175 Maryland,176 West Virginia,177 and Texas178––have either recently en- acted legislation or have proposed legislation requiring that employers make reasonable accommodations for pregnant employees. Several large and small municipalities have followed this wave including Providence, Rhode Island; New York City, New York; Philadelphia, Pennsylvania; and Central Falls, Rhode Island. Even the District of Columbia is stepping forward with an ordinance.179 Most lawmakers in favor of legislation requiring reasonable accommodation by employers claim it is necessary to stop current practices in which women have received unfavorable treatment in the workplace due to their pregnancies.

In Illinois, 2015 began with an amended statute regard- ing worker pregnancy accommodation that covers private employers with at least one employee. Th e law requires employers to make reasonable accommodations for both part-time and full-time pregnant workers throughout their pregnancies and immediately after.180 Th e Illinois statute suggests that reasonable accommodations include bathroom breaks, providing a stool for a worker who otherwise has to stand during a long shift, temporarily transferring an employee to a less strenuous position, providing light duty, or allowing for breast pumping breaks.181 Like other state laws, the Illinois amended law requires employers to make reasonable accommodations for conditions related to pregnancy or childbirth if the employee requests it, unless the accommodation would impose an undue hardship.182 It also prohibits employers from discriminating against workers because they need an accommodation or from forcing an employee into taking leave she does not wish to take183 if another accommoda- tion can be provided that would allow the employee to continue to work for the employer. Th e Illinois statute states that it is considered a civil rights violation for public employers, including fi re and police departments, to refuse to temporarily transfer a pregnant worker at her request

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to a less strenuous or hazardous position.184 In addition, the Illinois statute requires that employers display a poster prepared by the Department of Human Rights of pregnant employee rights.185

Th e statute in Alaska allows for the pregnant employee to request a transfer to a “suitable position” within the place of employment.186 Th e statute defi nes a suitable position as one that is unfi lled,187 less strenuous or hazardous,188 recommended by the employee’s licensed health care pro- vider,189 qualifi ed, and immediately able to perform the duties of the position.190 Th e Alaska statute also provides for compensation to the employee at the level of compen- sation just prior to the requested transfer or as the level in the transferred position.191 Th is law is applicable to employers with at least 21 employees.192 Th e statute does not appear to treat pregnancy-related complications as a disability or protect breastfeeding workers.

In California, an employer cannot refuse a pregnant employee reasonable leave from employment due to pregnancy or pregnancy-related medical conditions.193 Th is leave cannot exceed four months.194 Th e California Code refers to these conditions as “disabled on account of pregnancy, childbirth, or a related medical condition.”195 Employers may request advance notice of the request for leave due to a pregnancy-related condition and an em- ployer must pay for medical insurance but may request that the employee reimburse the employer for insurance premiums paid on her behalf if the employee does not return to work.196 It is also illegal “for an employer to refuse to provide reasonable accommodation for an employee for a condition related to pregnancy, childbirth, or a related medical condition, if she so requests, with the advice of her health care provider.”197 Upon the request of a pregnant employee, an employer must temporarily transfer her to a less strenuous or hazardous position when such request can be reasonably accommodated.198 What is interesting about the California provision is that it does not require the employer to accommodate the less strenuous position request or the temporary leave request if “based upon a bona fi de occupational qualifi cation.”199

Th e statute in the state of Connecticut includes provi- sions for both disability leave and reasonable accommoda- tions for the pregnant worker.200 A pregnant worker must give written notice to the employer of her pregnancy and the request to transfer to a suitable temporary position.201 Th e transfer may be requested by the pregnant worker if that worker “believes that continued employment in the position held by the pregnant employee may cause injury to the employee or fetus.”202 Th e statute does not mandate written documentation of the potential injury by a licensed health care provider. Th e statute provides for an appeal

process related to the position transfer.203 An employer must grant a reasonable leave of absence for the pregnant worker requesting such a leave due to a disability result- ing from the pregnancy and allow for any accumulation of leave or benefi ts to be maintained by the employee.204

Delaware’s recent mandate for pregnancy-related ac- commodations by employers was signed into law in September of 2014.205 Th e requirement to accommodate workers includes limitations due to pregnancy, childbirth, lactation, and related conditions. It provides that em- ployers, when feasible to do so, must provide reasonable accommodations in the workplace to pregnant employees such as more frequent or longer breaks, modifi cations to no-food-or-drink policy, periodic rest breaks, light-duty assignments, temporary transfer to alternative positions, modifi cations to work schedules or job responsibilities, and appropriate facilities for expressing breast milk.206 Employers in Delaware must make available to pregnant workers the same accommodations or benefi ts that are available to those with injuries or disabilities.207 Factors to consider in determining whether accommodations would create an undue hardship for the employer include the nature and cost of the accommodation, the size of the employer’s business, and the eff ect the accommoda- tion would have on business operations.208 All provisions within the act make it clear that sex discrimination in- cludes pregnancy discrimination.

Hawaii’s Code was enacted in 1990 and makes it unlaw- ful for an employer to exclude a pregnant applicant due to her pregnancy.209 An employer must also accommodate a leave request due to a “disability due to and resulting from pregnancy, childbirth, or related medical conditions.”210 In addition, an employer “shall make every reasonable accommodation to the needs”211 of the employee with a pregnancy-related disability. Th e statute does not provide a defi nition for the exact meaning of a disability. Hawaii provides for temporary disability to employees who are un- able to work due to their disability, including pregnancy.212

Th e Louisiana Fair Employment Practices Act requires employers to temporarily transfer a pregnant employee “to a less strenuous or hazardous position” if the employee requests the transfer on the advice of her doctor.213 Em- ployers are not required to create a new position or displace another employee.214 Pregnancy and related conditions shall be treated like any other temporary disability.215

Maryland enacted its statute in 2013 titled “Reasonable Accommodations for Pregnant Workers Act.”216 If a preg- nant employee requests an accommodation, employers must explore all possible options of providing a reasonable accommodation to this employee.217 Employer’s duties for accommodating employees with pregnancy-related

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disabilities closely mirror the medical certifi cation and accommodations process similar to those employees who have similar rights under the ADA.218

West Virginia has recently enacted the Pregnant Work- ers’ Fairness Act as an amendment to the existing Code in that state.219 Th is statute explicitly requires its employers to make the same sorts of reasonable accommodations for pregnancy, childbirth, and related medical conditions that employers already must make for temporary disabilities not related to pregnancy.220 Similar to other states, an employer may “demonstrate that the accommodation would impose an undue hardship” if the accommodation is made.221 Interestingly, an employer in West Virginia cannot require an employee or potential employee that is pregnant to “accept an accommodation” that she does not want to accept,222 nor can the employee be forced into leave if an accommodation can be made.223

Th e amended statute in New Jersey recognizes that pregnant women are “vulnerable to discrimination in the workplace” and have been subjected to unpaid leave or job loss. New Jersey employers must reasonably accommodate a pregnant employee suff ering from a pregnancy-related medical condition.224 Th e statute suggests types of ac- commodations employers must make if necessary for the pregnant employee such as frequent bathroom breaks, rest, increased water intake, modifi ed work schedules or position modifi cations.

In the law proposed in Minnesota, an employer must reasonably accommodate an employee seeking an ac- commodation related to pregnancy, childbirth, or health conditions related to pregnancy.225 Th e proposed statute specifi cally requires that employers “must temporarily transfer a pregnant female employee to a less strenuous or hazardous position for the duration of her pregnancy if she so requests where the transfer can be reasonably accom- modated.”226 Additionally the proposed statute makes it unlawful to retaliate against an employee who has sought such an accommodation.227

In the District of Columbia, employers within its boundaries must make reasonable accommodations for an employee’s known limitations related to pregnancy, childbirth, related medical conditions or breastfeeding, unless doing so would impose an undue hardship on the employer.228 New employees and its current female employees must be provided with written notice of their rights, as well as post the pregnancy accommoda- tion rights in an accessible employee area.229 The law protects workers regardless of employment tenure or number of hours worked.230

Several municipalities have enacted ordinances requir- ing employers to make reasonable accommodations for

their pregnant workers. In Providence, Rhode Island, the City Council passed an ordinance to protect its pregnant workers within the city limits.231 Th e ordinance requires employers to provide workplace accommodations such as transfer to lighter duty position, breaks, and private places to express breast milk.232 “Promoting healthy and safe work environments for employees during and after pregnancy is an important step toward ensuring greater fi nancial stability for women and their families,” said Council President Michael A. Solomon.”233

In 2013, the New York City amended its Code234 to make it unlawful for an employer to refuse to provide reasonable accommodations needed by an employee for conditions related to pregnancy, childbirth, or related medical conditions. Th e purpose of the law is to allow the employee to perform the essential functions of the job.235 Employers in New York City must accommodate a pregnant employee’s request for an accommodation unless the employer can demonstrate that it would experience an undue hardship for the employer’s business.236

Th e city of Philadelphia recently amended its ordinance, applicable to all employers and employees within the city of Philadelphia, eff ective April of 2014.237 It requires “rea- sonable workplace accommodations for employees who have needs related to pregnancy.”238 An exception to the mandate for a reasonable accommodation is hardship.239 Examples of reasonable accommodations are bathroom breaks, rest breaks, manual labor assistance, leave, reas- signments, and job restructuring.240

In Central Falls, Rhode Island, the city ordinance was adopted to “combat” pregnancy discrimination and to require accommodations for the needs of the pregnant employee.241 Employers must provide

reasonable accommodations to pregnant women and those with conditions related to pregnancy and childbirth. Such a reasonable accommoda- tion may include more frequent or longer breaks, time off to recover from childbirth, acquisition or modifi cations of equipment, seating, temporary transfer to a less strenuous or hazardous position, job restructuring, light duty, break time and private non-bathroom space for expressing breast milk, assistance with manual labor, or modifi ed work schedules, among other things.242

It is also unlawful for an employer to force leave on an employee instead of an attempt to make a reasonable accommodation.243

Th e state of Texas does not have a statewide law requiring private employers to make reasonable accommodations

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for its pregnant workers. However since 2001, Texas has required its county and municipal governments to make reasonable eff orts to temporarily accommodate their preg- nant employees that provide a physician’s note.244

Th e state of Kentucky has proposed legislation to pro- tect its female workers regarding pregnancy.245 Iowa also has proposed legislation to mandate reasonable accom- modations to its pregnant employees. It would require an accessible worksite, acquisition or modifi cation of work equipment, restructuring of the job, or work schedule modifi cations.246 In addition, the states of Georgia, Mas- sachusetts, Wisconsin, North Carolina, Rhode Island and Pennsylvania are expected to propose legislation in 2015.247

B. Equal Employment Opportunity Commission

Th e EEOC is responsible for the enforcement of the fed- eral statutes related to discrimination. In 2014, it issued a new guidance for employers regarding the treatment of pregnant employees.248 Th is EEOC document provides some guidance on how the PDA and the ADA applies to employers with employees who are pregnant, although its authority was called into question by the U.S. Supreme Court in Young v. United Parcel Service, Inc. Th e EEOC Guidelines now state that “[c]ertain portions of this En- forcement Guidance are aff ected by the Supreme Court’s decision issued on March 25, 2015 in Young v. UPS. Th e Commission is studying the decision and will make ap- propriate updates.”249

Th e Enforcement Guidance on Pregnancy Discrimination and Related Issues [Guidance] provides some initial back- ground on both the PDA and the ADA including statisti- cal data on charges fi led based on pregnancy discrimina- tion. Th e Guidance provides hypothetical examples to assist with its explanation of the statutory provisions. It is important to note that this Guidance expands the need for employer accommodations for their female employees during their pregnancies. Th e Guidance treats the need for an accommodation by the pregnant worker as an ac- commodation under the ADAAA.

Th e ADAAA expanded the defi nition of disability to include employees with conditions requiring work-related restrictions similar to those needed by pregnant women. For example, someone who, be- cause of a back impairment, has a 20-pound lifting restriction that lasts for several months would be an individual with a disability under the ADA entitled to reasonable accommodation, absent undue hard- ship. Th e same individual would be an appropriate

comparator for PDA purposes to a woman who has a similar restriction due to pregnancy. Simi- larly, pregnant employees may require other kinds of workplace adjustments similar to accommoda- tions provided to individuals with disabilities, such as permission to take more frequent breaks and to keep a water bottle at a workstation where an employer generally prohibits this practice (an ac- commodation that an employer might provide to someone who takes medication to combat the ef- fects of dry mouth caused by certain psychiatric medications), or permission to use a stool to carry out job functions generally performed while stand- ing (an accommodation that might be provided to an employee with a back or leg impairment that limits standing).250

Recently the EEOC has focused on the identifi cation of employers who are not accommodating its pregnant workers. It has made this task a national enforcement priority through 2016.251

As an illustration of the recent EEOC enforcement eff orts, the case of EEOC v. Step Th ree, Ltd. was resolved on December 13, 2013.252 Th e Commission sued the employer under the PDA and the ADA to seek relief for an employee who worked for the company in Honolulu.253 Th e employee became pregnant after a series of infertility treatments and was then fi red by the employer after the employee discussed her travel restrictions.254 Th e settle- ment involved a two-year consent decree to resolve the suit, including $60,000 in monetary relief, as well provi- sions requiring it to hire a consultant, revise its policies and procedures, and to train staff .255

In another case, the EEOC sued an employer under the PDA and the ADA to seek relief for a pregnant technical assistant with a pregnancy-related disability.256 Allegations were made that the employer refused to honor the em- ployee’s request to move her offi ce closer to the bathroom to accommodate her severe nausea and vomiting, and eventually terminated the employee.257 Th e defendant agreed to pay $70,000 to settle the suit and entered into a four-year consent decree requiring it to hire a consultant to create anti-discrimination policies and procedures, and employee training.258 Two additional cases were settled with the EEOC involving employers who fi red workers shortly after learning of their pregnancies.259

C. Call for Federal Legislation Th e Pregnant Workers Fairness Act260 was introduced in the House of Representatives in May of 2012. Th is bill was sponsored by Senators Bob Casey of Pennsylvania and

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Jeanne Shaheen of New Hampshire, and Representatives Jerrold Nadler of New York, Carolyn Maloney of New York, Jackie Speier of California, Susan Davis of Califor- nia, and Marcia Fudge of Ohio.261 Th e bill has been read twice and referred to committee.262

Th e purpose of the proposed bill is “[t]o eliminate dis- crimination and promote women’s health and economic security by ensuring reasonable workplace accommoda- tions for workers whose ability to perform the functions of a job are limited by pregnancy, childbirth, or a related medical condition.”263 Th e proposed bill, if passed, will require that employers make reasonable accommodations for pregnant women needing a short-term accommoda- tion when the physical eff ects of their pregnancy confl ict with the particular demands of their job.264 Similar to the ADA, the accommodations must be made unless the accommodation would impose an undue hardship on the employer.265 It also seeks to prevent employers from forc- ing leave on pregnant workers when an accommodation can be made.266

VII. Conclusion Th e PDA, as recently interpreted by the U.S. Supreme Court in Young v. United Parcel Service, Inc., requires employers to provide some workplace accommodations for the limitations imposed by an employee’s pregnancy if the employer provides similar accommodations for other employees with limitations, unless the employer has par- ticular nondiscriminatory reasons for treating those other nonpregnant employees diff erently and if this diff erent treatment does not fall too heavily on pregnant workers as to create an inference of intentional discrimination. Businesses may well fi nd this interpretation confusing

and unhelpful. More clarity may be obtained in those states that have enacted laws to require some form of accommodation for pregnant employees. Businesses in those states should be aware of their state requirements for accommodation.

Employers in the states other than Hawaii, Louisiana, Illinois, Alaska, California, Connecticut, Delaware, Iowa, Maryland, West Virginia, and Texas and in the cities other than Providence, New York City, Philadelphia, and Central Falls should review their current policies regard- ing accommodation of pregnant employees to in order to treat these workers with respect, humanity, and to reasonably accommodate conditions related to pregnancy in the workplace.

Female employees that require a modification or adjustment to their everyday job duties because of a pregnancy-related issue should have the right to re- quest an accommodation from their employer as long as the requested accommodation is reasonable and does not cause an undue hardship for their employers. The pregnant employee should notify the employer of her need for an accommodation so she can continue working during her pregnancy. The employee should be able to explain and substantiate the need for the accommodation.

Although this approach seems straightforward and fair, the PDA does not necessarily require employers to accommodate pregnant employees in the same manner as every other employee with a workplace limitation. Since federal law lacks clarity, many states and municipalities have adopted laws to require accommodations for preg- nant employees, and this trend is likely to continue. To be considered a great place to work, a place of employment should be a great place to work for all employees.

ENDNOTES

1 Jessica Mason Pieklo, Lawsuit: Walmart Continues to Discriminate Against Pregnant Workers, RH Reality Check (Dec. 17, 2014) available at: http://rhreality- check.org/article/2014/12/17/lawsuit-walmart-con- tinues-discriminate-pregnant-workers/ (reporting that Candis Riggins, former Walmart employee recently fi led a complaint with the EEOC; Ms. Riggins made this statement to Ms. Pieklo during the interview).

2 U.S. Equal Employment Opportunity Commis- sion, Pregnancy Discrimination Charges, available at: www1.eeoc.gov//eeoc/statistics/enforcement/ pregnancy_new.cfm?renderforprint=1.

3 2015 U.S. LEXIS 2121 (2015). 4 Id. 5 Jo Freeman, The Revolution for Women in Law and

Public Policy, Women: A Feminist Perspective, 5th Ed. (1995).

6 Muller v. Oregon, 208 U.S. 412 (1908).

7 Muller, id. at 421. 8 Women’s Bureau, Offi ce of the Secretary, U.S. Dep’t

of Labor, Bulletin No. 240, Maternity Protection of Employed Women 7 (1952).

9 Lucinda M. Finley, Transcending Equality Theory: A Way Out of the Maternity and the Workplace Debate, 86 Colum. L. Rev. 1118, 1123 (1986).

10 Deborah A. Widiss, Gilbert Redux: The Interaction of the Pregnancy Discrimination Act and the Amended Americans with Disabilities Act, 46 U.C. Davis L. Rev. 961 (2013) (discussing accommodations to pregnant workers when there is a related medical condition).

11 Elizabeth Baker, Technology and Women’s Work, 91- 96 (New York: Columbia University Press) (1964).

12 Geduldig v. Aiello, 417 U.S. 484, 94 S. Ct. 2485, 1974 U.S. LEXIS 23 (1974).

13 Id. at 487. 14 Id. at 492.

15 Id. at 488. 16 Id. 17 Id. at 489. 18 One plaintiff fi led her discrimination claim in California

state court and three fi led in the Federal District Court. The state case was removed to the Federal court and both suits, brought as class actions, were consolidated. Id. at 486 fn. 1.

19 359 F. Supp. 792, 1973 U.S. Dist. LEXIS 13402 (N.D. Ca. 1973).

20 Id. at 801. 21 Geduldig v. Aiello, 417 U.S. 484 at 494, 94 S. Ct. 2485,

1974 U.S. LEXIS 23 (1974). 22 Id. at 496. 23 Cleveland Bd. of Educ. v. LaFleur, 414 U.S. 632, 94 S.

Ct. 791, 1974 U.S. LEXIS 44 (1974). 24 Id. at 634, 636. 25 Id. at 635.

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26 Id. at 635 and 637. 27 Id. at 640. 28 Id. at 641. 29 Id. 30 Id. at 646. 31 Id. at 651. 32 Id. at 639-640. 33 Id. at 640. 34 Id. at 642-643. 35 Id. at 647. 36 Id. 37 Id. at 636. 38 Id. at 651. 39 Id. at 656. 40 Id. 41 General Electric Co. v. Gilbert, 429 U.S. 125, 97 S. Ct.

401, 1976 U.S. LEXIS 178 (1976). 42 Id. at 145-146. 43 Id. at 127. 44 Id. at 128 (injunctive relief requesting an order requiring

the employer to include disability benefi ts to em- ployees with pregnancy related disabilities and threat these disabilities the same as other non-occupational disabilities).

45 Gilbert v. General Electric, 375 F. Supp. 367, 377 (E.D. Vir. 1974).

46 General Electric Co. v. Gilbert, 519 F.2d 661 (4th Cir. 1975).

47 General Electric Co. v. Gilbert, 429 U.S. 125 at 145-146, 97 S. Ct. 401, 1976 U.S. LEXIS 178 (1976).

48 Geduldig v. Aiello, 417 U.S. 484, 94 S. Ct. 2485, 1974 U.S. LEXIS 23 (1974).

49 General Electric Co. v. Gilbert, 429 U.S. 125 at 136, 97 S. Ct. 401, 1976 U.S. LEXIS 178 (1976).

50 Id. 51 Id. at 137. 52 Id. at 142. 53 Id. Justice Brennan dissent, at 147. 54 42 U.S.C. § 2000(e) (P.L. 95-555). 55 Forward to Legislative History of the Pregnancy

Discrimination Act of 1978, Committee on Labor and Human Resources, United States Senate, June 1980, available at http://babel.hathitrust.org/cgi/pt?id=pur 1.32754076789159;view=1up;seq=1.

56 Katie Cushing, Facing Reality: The Pregnancy Discrimi- nation Act Falls Short for Women Undergoing Infertility Treatment, 40 Seton Hall L. Rev. 1697, 1704 (2010).

57 The Pregnancy Discrimination Act of 1978, 42 U.S.C. § 2000(e) (P.L. 95-555).

58 42 U.S.C. § 2000e(2)(a)(1) (2006). 59 42 U.S.C. § 2000e(k). 60 Deborah L. Brake & Joanna L. Grossman, Unprotected

Sex: The Pregnancy Discrimination Act at 35, 21 Duke J. Gender L. & Pol’y 67, 76-77 (2013).

61 Stout v. Baxter Healthcare Corp., 282 F.3d 856, 860 (5th Cir. 2002) (quoting Dormeyer v. Comerica Bank Illinois, 223 F.3d 579, 583 (7th Cir. 2000)); see also Wallace v. The Methodist Hospital System, 271 F.3d 212, 223 (5th Cir. 2001) (noting that the PDA “requires the employer to ignore an employee’s pregnancy, but not her absence from work, unless the employer overlooks the comparable absences of non-pregnant employees”).

62 29 U.S.C. § 2601 et. seq. (1993). 63 29 U.S.C. § 2612(a)(1). 64 29 U.S.C. § 2611(10).

65 29 U.S.C. § 2612(c). 66 See, Jeannette Cox, Pregnancy as “Disability” and the

Amended Americans with Disabilities Act, 53 B.C. L. Rev. 443, 454 (2012).

67 29 U.S.C. § 2612(b). 68 Cox, supra note 66. 69 Americans with Disabilities Act Amendments Act of

2008, 42 U.S.C. § 12101 (2008). 70 Americans with Disabilities Act, 42 U.S.C. § 12101

(2006). 71 For a complete list of health concerns for women

related to pregnancy, see Offi ce on Women’s Health, U.S. Department of Health and Human Services, womenshealth.gov.

72 Americans with Disabilities Act of 1990, 42 U.S.C. § 12102(2)(A).

73 EEOC, Interpretive Guidance on Title I of the Ameri- cans with Disabilities Act, 29 C.F.R. pt. 1630 app. § 1630.2(h), (j) (1991); see also Serednyj v. Beverly Healthcare, LLC, 656 F.3d 540, 553 (7th Cir. 2011) (cit- ing cases where the court has refused to acknowledge pregnancy as a physical impairment).

74 EEOC, Interpretive Guidance on Title I of the Ameri- cans with Disabilities Act, 29 C.F.R. pt. 1630 app. § 1630 (2012).

75 Tsetseranos v. Tech Prototype, 893 F. Supp. 109 (D.N.H. 1995).

76 Cerrato v. Durham, 941 F. Supp. 388 (S.D. N.Y. 1996). 77 Miller-Wohl Co. v. Commissioner of Labor and Indus-

try, 214 Mont. 238, 692 P.2d 1243 (1984). 78 Id. at 242. 79 Id. 80 Id. 81 Id. See, MONT. CODE ANN. §§ 49-2-310-49-2-311

(1983). This act pre-dated the PDA, and allowed for pregnant Montana employees to fi le suit against an employer who did not allow its pregnant worker to continue working during her pregnancy, failed to provide reasonable pregnancy leave, failed to allow for the collection of reasonable disability benefi ts, and did not allow for the pregnant worker to return to work after pregnancy. See also, Herma Hill Kay, Equality and Difference: The Case of Pregnancy, 1 Berkeley Women’s L.J. 1, 10-11 (1985).

82 Id. 83 Id. 84 Miller-Wohl Co. v. Comm’r of Labor & Industry, 515 F.

Supp. 1264 (D. Mont. 1981), vacated, 685 F.2d 1088 (9th Cir. 1982).

85 Id. 86 Miller-Wohl Co. v. Comm’r of Labor & Industry, 685

F.2d 1088, 1090-91 (9th Cir. 1982). 87 Id. 88 Troupe v. May Department Stores Co., 20 F. 3d 734

(7th Cir. 1994). 89 Id. at 735. 90 Id. at 736. 91 Id. at 737-739. 92 Arizanovska v. Wal-Mart Stores, Inc., 682 F. 3d 698,

701 (7th Cir. 2012). 93 Id. at 700 and 701. 94 Id. at 701. 95 Id. 701. 96 The plaintiff also alleged discrimination based on na-

tional origin, as well as both intentional and negligent infl iction of emotional distress.

97 Id. at 702. 98 Id. at 702. 99 Id. at 702-703. 100 Id. at 703. 101 Id. at 703. 102 Id. at 703. 103 Id. at 703-705. 104 EEOC v. Houston Funding, 717 F.3d 425 (5th Cir. 2013). 105 Id. at 426. 106 Id. at 430. 107 Id. 108 Patricia Barnes, Settlement is Mother’s Day Gift to

Working Mothers, available at http://abusergoesto- work.com/tag/eeoc-v-houston-funding-ii/ (discussing both the case and the settlement).

109 549 Fed. Appx. 478; 2013 U.S. App. LEXIS 25738 (6th Cir. 2013).

110 Id. 111 Id. 112 Id. at 483. 113 Id. 114 Id. at 23. 115 Ensley-Gaines v. Runyon, 100 F.3d 1220 (6th Cir.

1996). 116 Latowski v. Northwoods Nursing Center, 2014 U.S.

Dist. LEXIS 56080 (2014). 117 707 F.3d 437 (4th Cir. Md. 2013), cert. granted, 134 S.

Ct. 2898 (2014). 118 EEOC v. Horizon/CMS Healthcare Corp., 220 F.3d

1184, 1189 (10th Cir. 2000). 119 Id. 120 Id. at 1194. 121 Id. at 1197. 122 462 U.S. 669 (1983). 123 Id. at 684. 124 International Union v. Johnson Controls, 499 U.S. 187,

191-192 (1991). 125 Id. at 205. 126 California Federal Savings v. Guerra, 479 U.S. 272

(1987). 127 Id. at 274. 128 Id. at 281. 129 AT&T Corp. v. Hulteen, 556 U.S. 701, 704 (2009). 130 Id. at 705. 131 Id. 132 Id. at 706. 133 Id. at 707. 134 Id. at 716. 135 707 F.3d 437 (4th Cir. Md. 2013), cert. granted, 134 S.

Ct. 2898 (2014) oral argument transcripts, available at http://www.supremecourt.gov/oral_arguments/ argument_transcripts/12-1226_i4dk.pdf (last visited Mar. 9, 2015), decided by U.S. Supreme Court, No. 12-1226 (Mar. 25, 2015).

136 Id. at 440. 137 Id. 138 Id. at 441. 139 Id. 140 Id. at 441-442. 141 Id. at 442. 142 42 U.S.C. §§12101-12213 (2015). 143 707 F. 3d 437 at 440 (4th Cir. 2013). 144 Id. at 442 and 449. 145 Young v. United Parcel Service, Inc., 2011 U.S. Dist.

LEXIS 14266 (D. Md. 2011). 146 Id. at 447-448.

SUMMER 2015 125

147 Id. at 450. 148 Id. at 447-448. 149 Id. 150 See Ensley-Gaines v. Runyon, 100 F.3d 1220 (6th Cir.

1996) and EEOC v. Horizon/CMS Healthcare Corp., 220 F.3d 1184 (10th Cir. 2000).

151 Young v. UPS, 134 S. Ct. 2898, 189 L. Ed. 2d 853, 2014 U.S. LEXIS 4683, 83 U.S.L.W. 3010 (U.S. 2014).

152 ITT Chicago-Kent College of Law, The OYEZ Project, Young v. United Parcel Service, Inc. (2014) available at http://www.oyez.org/cas- es/2010-2019/2014/2014_12_1226 (last visited Mar. 9, 2015)

153 Brigid Schulte, With Supreme Court Case Pending, UPS Reverses Policy on Pregnant Workers, Wash. Post (Oct. 29, 2014), available at http://www.washingtonpost. com/blogs/she-the-people/wp/2014/10/29/with- supreme-court-case-pending-ups-reverses-policy- on-pregnant-workers/

154 PDA, §2000e(k). 155 Id. 156 Young v. United Parcel Service, Inc., 2015 U.S. LEXIS

2121 at 21 (2015). 157 Id. at 22. 158 Id. at 24. 159 Id. at 33. 160 Id. at 31. 161 Enforcement Guidance: Pregnancy Discrimination and

Related Issues, issued July 14, 2014, available at http:// www.eeoc.gov/laws/guidance/pregnancy_guidance. cfm (last visited Apr. 9, 2015).

162 Id. 163 Young v. United Parcel Service, Inc., 2015 U.S. LEXIS

2121 (2015). 164 McDonnell Douglas Corp. v. Green, 411 U. S. 792, 802

(1973) 165 Haw. Rev. Stat. § 12-46-107 (1990), effective Decem-

ber 31, 1990. 166 La. Rev. Stat. §23:342 (1997). 167 Haw. supra note 165 at §12-46-107(c). 168 Haw. supra note 165 at §378-2. 169 La. supra note 166 at § 23:342 (3) and (4). 170 775 Il. Comp. Stat. 5/2-102(H)-(J) (2011), effective

January 1, 2015. 171 Alaska Stat. §39.30.520 (2013). 172 Cal. Gov’t Code §12945 (2012). 173 Conn. Gen. Stat. §46a-60(a)(7) (2011). 174 Delaware Pregnant Workers Fairness Act, S.B. 212, Del.

Code Ann. tit. 19 §§710, 711, 716 (2014). 175 N.J. Rev. Stat. §10:5-12(s) (2014), effective January 21,

2014. 176 Md. Code. Ann. State Gov’t § 20-609 (2013). 177 W.Va. H.B. 4284, W.Va. Code §5-11-b-1 et. seq. (2014)

(effective date June 4, 2014). 178 Tex. Loc. Gov’t Code § 180.004 (2001). 179 Protecting Pregnant Workers Fairness Act of 2014, D.C.

Act. 20-458 (2014). 180 Il. supra note 170 at 5/2-102 (J)(1). 181 Il. supra note 170 at 5/2-102 (J)(4). 182 Il. supra note 170 at 5/2-102 (I). 183 Il. supra note 170 at 5/2-102 (J)(4). 184 Il. supra note 170 at 5/2-102 (H). 185 IL Public Act 98-1050, amending the Illinois Human

Rights Act (775 ILCS 5/1 et seq.) 186 Alaska supra note 171 at §9.20.520 (a). 187 Alaska supra note 171 at §39.20.520 (a)(1).

188 Alaska supra note 171 at §39.20.520 (a)(1). 189 Alaska supra note 171at §39.20.520 (a)(2). 190 Alaska supra note 171 at §39.20.520 (a)(3). 191 Alaska supra note 171 at § 9.20.520 (a)(b)(1) and (2). 192 Alaska supra note 171 at §39.20.520. 193 Cal supra note 172 at §12945(a)(1). 194 Cal supra note 172 at §12945(a)(1). 195 Cal supra note 172 at §12945(a)(1). 196 Cal supra note 172 at §12945(a)(2)(A). 197 Cal supra note 172 at §12945(a)(3)(A). 198 Cal supra note 172 at §12945(a)(3)(C). 199 Cal supra note 172 at §12945(a). 200 A case has recently tested the Connecticut statute. In

Gaither v. Shop Supermarkets Co. (Jan. 2015) before Judge Arterton, it was held that the employee who was wrongfully terminated because of a pregnancy lifting restriction could proceed with the lawsuit under the Connecticut Fair Employment Practices Act.

201 Conn. supra note 173 §46a-60(a) 7(E) and (G). 202 Conn. supra note 173 §46a-60(a) 7(E). 203 Conn. supra note 173 §46a-60(a) 7(F). 204 Conn. supra note 173 §46a-60(a) 7(C) and (D). 205 Del. supra note 174. 206 Del. supra note 174 at §710(17). 207 Del. supra note 174 at §711(3). 208 Del. supra note 174 at §710(23). 209 Haw. supra note 168 at §12-46-107(a). 210 Haw. supra note 168 at §12-46-107(b). 211 Haw. supra note 168 at §12-46-107(c). 212 Haw. supra note 168 at ch. 392-1 to 392-101. 213 La. supra note 169 at §23:342 (4). 214 La. supra note 169 at §23:342 (4). 215 La. supra note 169 at §23:341. 216 Md. supra note 176 at §20-609. 217 Md. supra note 176 at §20-609(d). 218 Md. supra note 176 at §20-609(b). 219 W.Va. supra note 177. 220 W.Va. supra note 177 at §5-11B-2(1). 221 W.Va. supra note 177. 222 W.Va. supra note 177 at §5-11B-2(3). 223 W.Va. supra note 177 at §5-11B-2(4). 224 N.J. supra note 175 at §10:5-12(s). 225 Minn. Stat. §181.9414 (2014). 226 Id. at §181.9414 (23.24). 227 Id. at 181.9414(3). 228 Protecting Pregnant Workers Fairness Act of 2014, D.C.

Act. 20-458 (2014). 229 Id. 230 Id. 231 Providence, RI Ord. § 16-57(a)(4) (2014). 232 Id. 233 Council Passes Ordinance to Protect Women from

Pregnancy Discrimination in the Workplace, Offi cial Website of the Providence City Council (May 20, 2014) available at http://council.providenceri.com/ Pregnancy_Discrimination2014 (last visited Mar. 10, 2015) (discussing the pregnancy accommodation ordinance).

234 N.Y.C. Admin. Code § 8-107(22) (2013), effective January 30, 2014.

235 Geoffrey A. Mort, New York City Acts to Further Protect Pregnant Employees, but State and Federal Measures Lag, 38 NYSBA Labor & Employment Law J. 38 (2013) (discussing the recent amendments to the New York City Administrative Code and comparing it to that of the New York state code and the federal Pregnancy

Discrimination Act). 236 Supra note 234. 237 Phil. Code § 9-1128 (1) (2014). 238 Id. 239 Id. 240 Id. at § 9-1128 (1)(a). 241 Central Falls, RI, Revised Ordinances, Ch. 12, Art. 1,

§12-5 (2014). 242 Id. at (a). 243 Id. at (c)(2). 244 Tx supra note 178 at §180.004. 245 KY H.B. 218. 246 Iowa S.B. 308 (201X). 247 Marsha Mercer, States Go Beyond Federal Law to

Protect Pregnant Workers, The PEW Charitable Trusts (Jan. 7, 2015), available at http://www.pewtrusts.org/ en/research-and-analysis/blogs/stateline/2015/1/07/ states-go-beyond-federal-law-to-protect-pregnant- workers (last visited Apr. 9, 2015).

248 Enforcement Guidelines on Pregnancy Discrimination and Related Issues (July 14, 2014).

249 Id., available at http://www.eeoc.gov/laws/guidance/ pregnancy_guidance.cfm (last visited Apr. 9, 2015).

250 Id. at I. A(5). 251 EEOC, U.S. Equal Employment Opportunity Commis-

sion Strategic Enforcement Plan FY 2013-2016 (Ap- proved Dec. 17, 2012) available at http://www.eeoc. gov/eeoc/plan/sep.cfm (last visited Mar. 23, 2015).

252 EEOC v. Step Three, Ltd., D. Haw. No. 1:13-cv-00674; see EEOC Press Release, 12/11/13, available at http:// www.eeoc.gov/eeoc/newsroom/release/12-11-13a. cfm (last visited Mar. 10, 2015).

253 Press Release, Id. 254 Id. 255 Id. 256 EEOC v. Engineering Documentation Sys., Inc. (D.

Nev. No. 3:11-cv-00707) (resolved 4/17/2013) available at http://www.eeoc.gov/laws/guidance/ pregnancy_fact_sheet_litigation.cfm (last visited Mar. 10, 2015).

257 Id. 258 Id. 259 See, EEOC Press Release, 6/17/14, available at http://

www.eeoc.gov/eeoc/newsroom/release/6-17-14a. cfm (last visited Mar. 10, 2015), and EEOC Press Re- lease, 7/9/14, available at http://www.eeoc.gov/eeoc/ newsroom/release/7-9-14a.cfm (last visited Mar. 10, 2015).

260 S. 942, 113th Cong. (2013-2014). 261 April Mellody, Senators Casey and Shaheen, Reps

Nadler, Maloney, Speier, Davis and Fudge Introduce Pregnant Workers Fairness Act to Protect Pregnant Workers from Workplace Discrimination, Press Release, United States Senator for Pennsylvania (May 14, 2013) available at http://www.casey.senate.gov/newsroom/ releases/senators-casey-and-shaheen-reps-nadler- maloney-speier-davis-and-fudge-introduce-preg- nant-workers-fairness-act-to-protect-pregnant- women-from-workplace-discrimination (last visited Mar. 10, 2015).

262 S. 942, 113th Cong. (2013-2014). 263 Id. preamble. 264 Id. at §2 (1). 265 Id. 266 Id. at §2 (4).

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