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Scoreboard For The Bullard Edge (Part I) – Two Cases, Two Correct Calls

April 23, 2015

By Michael G. McClory

Just like Babe Ruth, Joe Namath, and Punxsutawney Phil, The Bullard Edge recently made two bold(ish) predictions.  And those predictions have come to pass.
  • EEOC improperly issues Guidance on Pregnancy Discrimination?  Check.
  • Telecommuting as reasonable accommodation is case by case?  Check.

We will rehash each of these and offer a few fresh observations.  Our discussion of the EEOC Guidance is set out below; our discussion of telecommuting will follow tomorrow.

Part I: US Supreme Court Rebukes EEOC For Its Pregnancy Discrimination Guidance

The Issue: On July 14, 2014 the EEOC issued a document titled EEOC Enforcement Guidance on Pregnancy Discrimination and Related Issues.  The agency said its purpose was to “provide[ ] guidance regarding the Pregnancy Discrimination Act and the Americans with Disabilities Act as they apply to pregnant workers.”  While most of the Guidance was a non-controversial summary of existing law, the EEOC did try to pull a fast one. 

Specifically, the Pregnancy Discrimination Enforcement Guidance offers an expansive view of light duty. According to the EEOC, an employer must provide light duty for pregnant employees if it provides light duty to employees who are not pregnant but who are similar in their ability or inability to work.  “Thus, for example, an employer must provide light duty for pregnant workers on the same terms that light duty is offered to employees injured on the job who are similar to the pregnant worker in their ability or inability to work.”

What We Said:  Despite the reasonable veneer, on July 17, 2014 we said that “the EEOC conveniently ignores the fact that this very question is currently pending before the United States Supreme Court for decision next term.  In Young v. United Parcel Service, the Court will answer this question: ‘Whether, and in what circumstances, an employer that provides work accommodations to nonpregnant employees with work limitations must provide work accommodations to pregnant employees who are ‘similar in their ability or inability to work.’”

The Bullard Edge stated that in issuing this Guidance the EEOC was “acting precipitously” and had “shown a lack of respect for the judicial process”.  We also rejected EEOC Commissioner Feldblum’s assertion that the agency was not trying to “’get[ ] out ahead’ of the Supreme Court”.

What Happened:  On March 25, 2015 the United States Supreme Court issued its decision in Young v. UPS.  The case arose after UPS denied driver Peggy Young’s request for light duty; she was medically restricted to lifting no more than 20 pounds because of pregnancy and sought to be excused from the 70-pound lifting requirement.  UPS limited its light duty program to drivers who had on-the-job injuries, were disabled per the ADA, or had lost DOT certification.  As a result, Ms. Young had to take an extended unpaid leave.  She sued, claiming pregnancy discrimination.  The trial court granted summary judgment for UPS and the Fourth Circuit affirmed that decision.

The Supreme Court reversed the appellate court decision, but did not rule in favor of Ms. Young.  Instead, it remanded the case to the lower courts to reconsider.  It provided a framework for that reconsideration.  In a nutshell, the Supreme Court held that the Pregnancy Discrimination Act does not require that an employer always provide the same work accommodations to an employee with pregnancy-related work limitations as it provides to employees with similar, non-pregnancy related work limitations.  Rather, it said that the PDA prohibits an employer from treating a pregnant employee less favorably than non-pregnant employees because of pregnancy.  Further, an employee claiming pregnancy discrimination must show that she sought accommodation, that the employer denied the accommodation request, and that the employer did accommodate similarly-able non-pregnant employees.  If an employee meets this burden, the employer will be allowed to show a legitimate, non-discriminatory reason for the different treatment.  If the employer meets that requirement, the employee gets the opportunity to show that the employer’s explanation is merely a pretext for discrimination.

Regarding EEOC’s Pregnancy Discrimination Guidance, the Supreme Court had harsh words.  The Solicitor General had argued that the Guidance should receive “special, if not controlling, weight” and argued that the judgments and interpretations of enforcement agencies about the laws they enforce have long been accorded deference.  The Supreme Court acknowledged this, but found the EEOC’s Guidance unworthy of deference in this situation.  Here is what it said (and note that we have highlighted its agreement with The Bullard Edge).
“But we have also held that the ‘weight of such a judgment in a particular case will depend upon the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors that give it power to persuade, if lacking power to control.’  [Citation omitted.]  These qualifications are relevant here and severely limit the EEOC’s July 2014 guidance’s special power to persuade.

We come to this conclusion not because of any agency lack of ‘experience’ or ‘informed judgment.’  Rather, the difficulties are those of timing, “consistency,” and “thoroughness” of “consideration.” The EEOC promulgated its 2014 guidelines only recently, after this Court had granted certiorari in this case.  In these circumstances, it is fair to say that the EEOC’s current guidelines take a position about which the EEOC’s previous guidelines were silent.  And that position is inconsistent with positions for which the Government has long advocated.  [Examples omitted.]  Nor does the EEOC explain the basis of its latest guidance.  Does it read the statute, for example, as embodying a most-favored-nation status?  Why has it now taken a position contrary to the litigation position the Government previously took?  Without further explanation, we cannot rely significantly on the EEOC’s determination.”

Fresh Observation: Although the EEOC was scolded and Ms. Young did not win outright, the Supreme Court’s opinion ought to be considered a victory for the employee.  The Supreme Court effectively said that a policy or practice that adversely impacts pregnant employees violates the PDA unless the employer is able to present a legitimate, non-discriminatory reason for that policy or practice.
We will be back with Part II of this post tomorrow (telecommuting). 

Best regards,
The Bullard Edge