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It’s No Picnic…Federal Action Impacting Employment Law


Published on: Mon 8th Aug, 2016 By: Gretchen B Love

The United States Supreme Court and federal agencies have been busy this spring and summer issuing decisions and regulations that impact how all employers, including public sector employers, manage complex employment issues.  Simply stated, the federal courts and government are not making it easier to navigate the employment relationship.  It is incumbent upon every municipal manager and/or human resource professional to understand the impact of these decisions and regulations to ensure that your community does not inadvertently violate an employee’s or applicant’s rights. 

Pregnancy Discrimination Update

The United States Supreme Court issued a decision on March 25, 2015 which greatly expands the ability of a pregnant employee to seek legal relief if an employer fails to provide her with an accommodation pursuant to the Pregnancy Discrimination Act.  In Young v. United Parcel Services, 135 S.Ct. 1338 (2015), the plaintiff worked for UPS as a part-time driver until she became pregnant and was medically restricted to lifting no more than twenty (20) pounds.   UPS requires its drivers to lift up to seventy (70) pounds.  Based on the medical restriction, UPS advised the plaintiff that she could not work with the lifting restriction.  The plaintiff sued under a disparate-treatment theory.  In essence, the plaintiff alleged that other non-pregnant workers were permitted to continue to work with lifting restrictions while she was not.  In support of her claim, plaintiff noted that UPS accommodated workers who were injured on the job, had disabilities under the ADA or who had lost Department of Transportation certifications. 

The lower courts granted summary judgment to UPS reasoning that the pregnant plaintiff could not compare herself to employees injured on the job, disabled or without DOT certifications because they were too dissimilar.  The United States Supreme Court reversed the lower courts finding that the plaintiff could make a prima facie case of discrimination and was entitled to proceed to a jury trial.  

Relying on the statutory language of the PDA, the Court noted that the PDA prohibits discrimination based on pregnancy and it also requires that employers 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 Court found that a plaintiff alleging that she was denied an accommodation under the PDA could make out a prima facie case by showing that the employer accommodated others "similar in their ability or inability to work."  Using the burden-shifting analysis applicable to Title VII claims, the burden would then shift to the employer to articulate legitimate non-discriminatory reasons for denying the accommodation.  It is not legitimate for an employer to 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 can set forth a legitimate non discriminating reason, the burden shifts to the plaintiff to show that the employer’s legitimate non-discriminatory reasons are pretext for discrimination. 

It is important to note that the Court found that the plaintiff could create a genuine issue of material fact as to "whether a significant burden exists by providing evidence" that UPS "accommodates a large percentage of nonpregnant workers while failing to accommodate a large percentage of pregnant workers."  

In light of this ruling, employers should carefully consider whether there exists a legitimate, non-discriminatory reason for denying pregnant employees an accommodation under the PDA where the employer (like UPS) provides accommodations to employees injured on the job or with disabilities.  In response to the ruling, the Equal Employment Opportunity Commission issued a revised version of its Enforcement Guidance on Pregnancy Discrimination and Related Issues.  It is also important to note that the Amendments to the Americans with Disabilities Act made it easier for pregnancy-related impairments to qualify as disabilities requiring a reasonable accommodation.  

Religious Discrimination Update

On June 1, 2015, the Supreme Court of the United States issued a decision involving religious discrimination in hiring practices.  In Equal Employment Opportunity Commission v. Abercrombie & Fitch Stores, Inc., the EEOC filed suit on behalf of a Muslim job applicant who was denied a job because of her appearance (she wore a headscarf).  According to Abercrombie, its employees are required to dress in a manner that is consistent with its "Look Policy" which prohibits ball caps because they are too informal.  The applicant applied for a position and was interviewed for the job by an Assistant Manager who determined that the applicant was "qualified." The Assistant Manager sought guidance from her supervisors because the applicant wore a headscarf (which she believed was for religious reasons).  The Assistant Manager was specifically advised by a supervisor that she was not to hire the applicant because the headscarf violated the store’s "Look Policy."        

In analyzing the applicant’s claim, the Court noted that "Title VII does not demand mere neutrality with regard to religious practices – that they be treated no worse than other practices. Rather, it gives them favored treatment, affirmatively obligating employers not to fail or refuse to hire or discharge any individual … because of such individual’s … religious observance or practice."   The Court noted that actual knowledge of an applicant’s religious practices was not a prerequisite to liability.  The Court found that under Title VII an employer cannot make an applicant’s religious practice, confirmed or otherwise, a factor in employment decisions. 

The holding of this case creates many challenges in its application.  One must consider that most applicants do not wear clothing, jewelry or others items that would identify their religion.  Yet, the Court notes that an employer that considers an applicant’s religious practice as a factor in its decision-making, even if that practice is not confirmed, may be exposed to a claim of religious discrimination.  Employers should educate decision makers and those responsible for conducting interviews of potential pitfalls to ensure that they are asking the right questions (and avoiding those that are illegal or impermissible).  

New FMLA Forms Update

In May of 2015, the United States Department of Labor issued new forms for employers to use for purposes of complying with the requirements of the Family and Medical Leave Act.  The new forms are mostly identical to their prior versions with the exception of the medical forms which now specifically reference the Genetic Information Nondiscrimination Act (GINA).  On the Certification of Health Care Provider forms, health care professionals are advised "not provide information about genetic tests, as defined in 29 C.F.R. § 1635.3(f), genetic services, as defined in 29 C.F.R. § 1635.3(e), or the manifestation of disease or disorder in the employee’s family members, 29 C.F.R. § 1635.3(b)."  The new forms do not incorporate the safe harbor language provided in GINA which shields employers from liability in cases of inadvertent disclosure of prohibited information.  Accordingly, employers should carefully consider modifying the DOL’s model forms to include GINA’s safe harbor language.