By Katherine Mendez

Hot off the heels of the Supreme Court’s decision in Young v. United Parcel Service, Inc., recently, a bipartisan group of lawmakers declared their intent to reintroduce the Pregnant Workers Fairness Act.

You may recall that on March 25, 2015, the Supreme Court handed down its decision in Young v. United Parcel Service, Inc.  The Court vacated the Fourth Circuit’s decision and held that a pregnant worker seeking to show disparate treatment through indirect evidence may do so through the McDonnell Douglas burden shifting framework.

Under Young, a plaintiff may establish a prima facie case of discrimination by showing that she belongs to the protected class, she sought an accommodation, she was not accommodated, and that the employer accommodated other employees who were similar in their ability or inability to work.  If the plaintiff can establish her prima facie case, the burden shifts to the employer to articulate a legitimate non-discriminatory reason for denying the plaintiff the accommodation.  The reasons cannot consist simply of a claim that it is more expensive or less convenient to add pregnant women to the category of those whom the employer accommodates.

If the employer articulates a legitimate, nondiscriminatory reason, then the burden shifts back to the plaintiff to show that the employer’s reason is pretext for unlawful discrimination.  The plaintiff can show pretext by providing evidence that the employer’s policies impose a “significant burden” on pregnant workers and the employer’s legitimate, nondiscriminatory reasons are “not sufficiently strong” to justify the burden.  The plaintiff may do so by providing evidence that the employer accommodates a large percentage of non-pregnant workers while failing to accommodate a large percentage of pregnant workers.  (For a full analysis of the Young decision see Seyfarth Shaw’s One Minute Memo “SCOTUS Issues Decision in Pregnancy Accommodation Discrimination Case Against UPS.”)

Confused?  So was the legislature, which now seeks to cut the cord with the Supreme Court’s decision by delivering a new bill, which lawmakers claim will clarify ambiguities in the Supreme Court’s ruling in Young.  The bill articulates the following five unlawful employment practices: (1) failing to make reasonable accommodations to known limitations to the pregnancy, childbirth, or related medical conditions of job applicants or employees, unless the accommodation would impose an undue hardship on the employer’s business operation; (2) denying employment opportunities based on the need of the employer to make such reasonable accommodations; (3) requiring such job applicants or employees to accept an accommodation that they choose not to accept; (4) requiring protected employees to take leave if another reasonable accommodation can be provided for their known limitations; or (5) taking adverse action against an employee because she requests or uses a reasonable accommodation related to her pregnancy, childbirth, or related medical conditions.

In light of the recent developments in the law and the “bun” in the legislature’s oven, employers should strongly consider adopting practices that consider accommodation of pregnant employees, even if the pregnancy is without complications.

If you have questions regarding this topic, please contact the author, a member of Seyfarth’s Absence Manager & Accommodation Team [ , or your Seyfarth lawyer.