By: Alan M. Rauss
There are two important cases addressing employment discrimination that will be decided by the United States Supreme Court during its current term. They are Young vs. United Parcel Service, andEEOC vs. Abercrombie & Fitch Stores.
The issue in Young vs. United Parcel Service is the interpretation of a federal law known as the Pregnancy Discrimination Act (“PDA”). The PDA amended Title VII of the Civil Rights Act of 1964 (“Title VII”). The question before the Court is whether, and in what circumstances, the PDA requires an employer that provides light duty work to certain non-pregnant employees who are physically unable to perform all of their regular job duties to provide the same type of light duty work to women who are similarly unable to work as a result of their pregnancy.
The PDA states that women affected by pregnancy, childbirth or related medical conditions shall be treated the same for all employment-related purposes as other employees who are similarly limited in their ability to work as a result of reasons other than pregnancy.
Young regularly performed a job that required her to lift items weighing up to 70 pounds. She took a leave of absence in order to pursue in vitro fertilization treatments in an effort to become pregnant. The PDA covers that type of leave. When she was ready to return to work, Young provided UPS with a physician’s note indicating that she should not lift more than 20 pounds. UPS could have allowed Young to return to work to a “light duty” job, which would not require excessive lifting. It chose not to do so. Rather, it relied on the collective bargaining agreement between UPS and Young’s union that only required UPS to offer light duty work assignments to employees (i) who are injured on the job, (ii) who are disabled as defined by the Americans with Disabilities Act (“ADA”), or (iii) who lost their Department of Transportation driving certification for certain reasons. Since Young’s pregnancy-related limitations were not for any of those three reasons, UPS did not agree to provide light duty to Young.
The Court of Appeals decision that the Supreme Court will review held that the UPS policy of limiting light duty to employees injured on the job, disabled as defined under the ADA and stripped of their DOT certification, is “pregnancy-blind” and therefore lawful. The Court of Appeals recognized that the PDA requires a company to treat pregnant workers as favorably as it treats non-pregnant workers who are similar in their ability to work. However, UPS does not provide the same favorable treatment to all non-pregnant employees who are similar in their ability to work, and therefore it did not violate the statute when it did not offer that favorable treatment to Young. The Court of Appeals also held that Young was not entitled to be treated as disabled under the ADA because her lifting limitation was temporary and because she did not establish that any similarly situated employees received more favorable treatment than she received.
Two events that occurred outside of the courtroom have made this case even more interesting. First, in July of 2014, the Equal Employment Opportunity Commission (“EEOC”), the federal agency that enforces the PDA, issued an Enforcement Guidance in which it took the position that employers should accommodate the physical restrictions of women with normal, uncomplicated pregnancies as if those women had protected disabilities. This position is exactly what Young is arguing in the case before the Supreme Court. The EEOC took issued this Guidance even though it was fully aware of the fact that the U.S. Supreme Court will decide the issue in short order. Second, and at least equally interesting and unusual, is the fact that, only a few days after UPS filed its brief in the Supreme Court arguing that its policy was in accordance with law, it changed that policy! It announced that while it still believes that its denial of Young’s request for light duty was lawful, in the future pregnant employees at UPS will be eligible for light duty assignments.
The other important employment discrimination case before the Supreme Court during the current 2014-2015 term is the EEOC vs. Abercrombie & Fitch Stores. The issue presented in this case is whether an employer violates the religious discrimination prohibition of Title VII when it refuses to hire an applicant (or if it were to take action against employee) who it believes or assumes is engaged in a “religious observance and practice” when the employer does not have actual knowledge that a religious accommodation related to that observance or practice was required.
In this case, Samantha Elauf, a 17 year old Muslim female, was wearing a headscarf/hijab when she applied for a sales position at Abercrombie & Fitch. She was interviewed by a store manager who saw the headscarf and assumed Elauf was Muslim and was wearing the hijab for religious reasons. The headscarf was not discussed during the interview. The store manager was prepared to recommend that she be hired but he did not know the company’s policy on wearing head coverings. Neither did his supervisor. As a result, they posed the question to their district manager. The district manager responded that wearing a head covering would violate company policy because Abercrombie has a “Look Policy” and the hijab would be inconsistent with that policy. As a result, Elauf was not hired.
The EEOC filed suit against Abercrombie, alleging illegal discrimination based upon religion. The EEOC claimed that, instead of refusing to hire Elauf because she wears a hijab (i.e., because of the exercise of her religious beliefs), the company should have accommodated her religious beliefs by making an exception to its “Look Policy.” In response, Abercrombie argued that it should not be required to accommodate a belief about which it has no actual knowledge and that because Elauf failed to inform the company of a conflict between its policy and her religious practices the company should not be held liable.
The courts below reached different conclusions. The US District Court held that Abercrombie illegally failed to provide a reasonable religious accommodation to Elauf. The 10th Circuit Court of Appeals reversed that decision. It held that an employer is only obligated to provide a reasonable religious accommodation to an applicant or employee after the applicant/employee has explicitly informed the employer of a conflicting religious practice, and of the need for an accommodation. The Court explained that mere awareness by the employer is not sufficient. It found that the applicant/employee must also tell the employer that a variation from the employer’s ordinary policy is needed in order to trigger the employer’s duty to provide an accommodation. The EEOC’s argument that this standard is unreasonable, and that an applicant is not likely to be aware of a policy like Abercrombie’s “Look Policy” when he/she is applying for a job, did not convince the Court of Appeals.
The Supreme Court has been asked to determine what notice standard applies to an applicant/employee seeking religious accommodation from an employer. That is, the Court will be considering whether or not applicants or employees must be the ones to broach the topic of religious accommodations in the workplace, even if it appears to be obvious that the applicant/employee requires an accommodation to religious beliefs or practices. A decision is expected during the Supreme Court’s current term.