Young v. UPS and lifting guidelines for pregnant workers

In 2006, UPS driver Peggy Young became pregnant and asked for lighter-duty work that would comply with her doctor’s advice to limit lifting (to packages weighing 20 pounds or less during the first 20 weeks of her pregnancy, and 10 pounds or less during the remainder). UPS denied her request. Young was placed on leave without pay and lost her medical coverage, so she sued UPS. She didn’t win at the federal district or appeals court level, but the Supreme Court last week made a decision that gives Peggy Young a shot at winning – and might help other pregnant workers.

The Court didn’t actually decide whether UPS violated the Pregnancy Discrimination Act by denying Young’s request for light duty; instead, it sent the case back to the Fourth Circuit along with a new framework for deciding. SCOTUSBlog’s Lyle Denniston summarizes:

Dissatisfied with every argument made to it, a Supreme Court majority on Wednesday on its own fashioned a new way to test complaints that employers are discriminating against workers who become pregnant.  The result, in Young v. United Parcel Service, was a kind of hybrid remedy, judging intentional bias on the one hand and harmful impact on women workers on the other.

It was clear, though, that female workers did not receive legal protection as strong as their advocates sought, but neither did employers get a free pass from claims of pregnancy bias.  The six-to-three decision thus looked like a compromise, landing somewhere in the middle.

Slate’s Dahlia Lithwick explains the background:

The underlying facts of Young v. UPS are pretty straightforward: The Pregnancy Discrimination Act amended Title VII of the Civil Rights Act of 1964. The first clause of the PDA clarified that Title VII’s prohibition against sex discrimination applies to discrimination “because of or on the basis of pregnancy, childbirth, or related medical conditions.” The second clause says that employers must treat “women affected by pregnancy ... the same for all employment-related purposes ... as other persons not so affected but similar in their ability or inability to work.” The question for the Supreme Court was whether Peggy Young’s claim that UPS violated the PDA and engaged in pregnancy discrimination was correctly decided by the lower courts, which threw her case out before she ever got to trial. The answer today? No. She gets to go back and argue her claim in the Virginia courts.

Writing for the majority, Justice Stephen Breyer found that, “Viewing the record in the light most favorable to Young, there is a genuine dispute as to whether UPS provided more favorable treatment to at least some employees whose situation cannot reasonably be distinguished from Young’s. She should be allowed to go back to court to argue that the reason she was not accommodated was her pregnancy.”

… UPS wouldn’t accommodate [Young’s] request for light lifting, contending that the company offered accommodations for only three classes of workers: those injured on the job, those who lost their Department of Transportation driving certification, and those who have a disability under the Americans with Disabilities Act. UPS told Young that she was ineligible for an accommodation and forced her to take an unpaid leave of absence without health benefits. According to her lawyer, Sharon Gustafson, in a conference call, any pregnant worker who sought accommodation at UPS at the time was similarly sent home.

In an article written just after the case’s oral argument, Lithwick noted that UPS has since voluntarily changed its policy to allow light-duty assignments for pregnant workers. But what about pregnant workers at other companies who are denied accommodations? Writing in the Huffington Post, Tom Spiggle offers a tennis-match analogy and concludes that the Court’s decision will make it easier for pregnant workers to bring discrimination cases in the future:

So the Court struck a compromise finding that an employer could not treat a pregnant worker differently than a non-pregnant work unless the employer had a good non-discriminatory reason.

In practice, it would be something like a tennis match. A pregnant employee could get a lawsuit over the net by arguing that her employer violated the law when it refused to give her, for instance, a light-duty assignment while giving non-pregnant workers similar changes.

The employer could then knock the lawsuit back over the net by showing that it had a good, non-discriminatory reason to treat pregnant workers differently.

The pregnant employee could then lob the lawsuit back over the net again if she could show that the reason offered by the employer was just a cover story for discrimination. A jury would then determine which side it believed offered the best evidence.

Note that this type of framework is well established in employment law. The tennis match that I referred to is called "burden shifting" and courts have long used it after the Supreme Court established it in McDonnell Douglas vs. Green.

Why This is a Win for Pregnant Workers

Some commentators have suggested that this was a compromise. That is true as far as the legal theory goes. The Court fashioned a framework somewhere in the middle of the polar opposite positions taken by Young and UPS. But, as a practical matter, this was a bigger win for pregnant employees because the ability to get into court is more than half of the battle.

Occupational guidance for pregnant workers

We’ll have to wait and see how the lower courts rule when they apply the Supreme Court’s framework for deciding cases involving the Pregnancy Discrimination Act. In the meantime, Young’s case made me curious about the kinds of work accommodations doctors might recommend for pregnant workers. Just last year, researchers from the University of Texas at Austin School of Nursing reviewed the existing evidence and created “Occupational guidance for physical and shift work of pregnant women in the United States.”

The guidelines recommend that a physician conduct a systematic evaluation for a pregnant worker to determine whether work restrictions or modifications may be necessary; the evaluation should include an occupational health interview and identification of work-related risk factors. Such risk factors include long work schedule (more than 40 hours per week), multiple employments, frequent overtime, shift work, repetitive stair climbing, bending or stooping for more than an hour a day late in pregnancy, manual lifting, and prolonged hours standing (more than three or four hours of standing continuously). For women with uncomplicated normal pregnancy, sedentary activity may be performed for 40 weeks or the beginning of labor, while very heavy activities are advised only until 20 weeks.

Recommendations specifically regarding lifting in pregnancy reference recent publications in the journals American Journal of Obstetrics & Gynecology (Leslie A. MacDonald et al) and Human Factors (Thomas R. Waters et al). The lists of authors for both articles are similar, and include multiple authors from the National Institute for Occupational Safety and Health – although both articles include disclaimers that the views are those of the authors and do not necessarily represent NIOSH’s views. Both describe the researchers work to adapt the revised NIOSH lifting equation to develop recommended weight limits for pregnant women.

The authors of these articles cite literature that describes risks for both fetuses and pregnant women, with the caveat that levels of evidence vary. Research has linked heavy exertion during pregnancy to an increased risk of miscarriage, spontaneous abortion, pre-term delivery, and pre-eclampsia. For pregnant women, changes in their center of mass, spinal curvature, and abdominal girth may increase their risk of injury from lifting. The authors suggest that physicians ask pregnant women about the frequency and duration of on-the-job lifting, and propose different weight limits depending on the responses.

One important thing about the recommended weight limits is that they vary depending on the location of the item the worker is lifting (this is also considered in the lifting equation for the general worker population). It’s easiest for a worker to lift something that’s located directly in front of his or her abdomen. The size of a typical pregnant woman’s abdomen at 20+ weeks makes it hard for her to lift things from the most favorable lifting position, so the recommended weight limits for the second half of women’s pregnancies are lower. The researchers do not recommend lifting objects off the floor for women at any stage of pregnancy.

Specific recommendations range from 17 to 36 pounds for a woman who’s early in her pregnancy and lifts infrequently, with the 17-pound limit being for objects located high up and far away from the body, and 36 pounds for objects lifted from directly in front of the abdomen. The limit for the front-of-the-abdomen location drops to 26 pounds for women more than 20 weeks pregnant. For women who lift repetitively for more than an hour a day, the limits range from nine pounds to 18 pounds, with the latter figure dropping to 13 pounds for women more than 20 weeks pregnant. The authors note, though, that these guidelines assume certain conditions, such as two-handed lifting, lifting without rotation of the spine, and no more than three lifts per minute. When any of these assumptions is violated, the authors recommend a job analysis. And, of course, they note that clinicians should always consider individual patient factors and use their own judgments.

This new guidance can help physicians offer evidence-based advice to their pregnant patients whose jobs involve lifting. The extent to which employers feel obligated to offer work assignments that comply with physician advice will be influenced by Peggy Young’s case, which is not yet fully resolved.