A UPS driver filed a charge with the EEOC, alleging that UPS' refusal to provide light duty and other accommodations to pregnant workers violated the PDA, which amended Title VII of the Civil Rights Act of 1964 and prohibits discrimination based on pregnancy. The charging party ultimately resolved her individual charge; however, the EEOC continued to investigate UPS' alleged denial of accommodation to other pregnant employees.

The settlement agreement reached between the EEOC and UPS provides payment to UPS employees who suffered monetary losses under the pre-2015 light duty policy as a result of not being granted light duty work during their pregnancies. The agreement also requires UPS to consider other forms of accommodation in addition to light duty when appropriate.

According to the EEOC press release, the settlement agreement also provides that UPS' accommodation obligations under the PDA apply to childbirth and related medical conditions.

It should be noted that in 2015, the U.S. Supreme Court addressed UPS' pre-2015 light duty policy in the case of Young v. United Parcel Service, Inc. UPS argued that its policy was facially neutral towards pregnant workers because both pregnant and non-pregnant workers were treated the same and subject to denial of light duty if their work restrictions did not fall within the on-the-job injury, ADA, or DOT categories.

However, Young argued—consistent with the EEOC's enforcement guidance at that time—that an employer must provide light duty to all pregnant workers who need it due to work restrictions resulting from pregnancy, even if the employer denies accommodation to other non-pregnant employees whose work restrictions are not covered by the policy.

The Supreme Court effectively rejected both arguments. Instead, the Court held that where a pregnant worker is denied light duty or other accommodation offered to a non-pregnant worker, the employer can justify its treatment of the pregnant worker by articulating a legitimate, non-discriminatory reason for its policy. In order to demonstrate liability under the PDA, the pregnant worker must then show that the employer's articulated reason is a pretext for pregnancy discrimination. Such pretext might be demonstrated, for example, where the employer's policy grants accommodation to a large percentage of nonpregnant employees, but denies accommodation to a large percentage of pregnant employees.

While the recent UPS settlement does not necessarily reflect an enforcement position which departs from the essential holding of the Supreme Court's decision in Young v. UPS, it does suggest that the EEOC will apply heightened scrutiny of any policy which limits or denies accommodation of pregnant employees. Employers should carefully review their light duty and other policies which offer accommodations to employees who are unable to perform job functions, and assess whether the denial of such accommodation to pregnant employees (who do not otherwise meet the policies' criteria for eligibility) is based on legitimate, non-discriminatory reasons. As noted by the Supreme Court, such reasons normally cannot be based solely on the cost of providing the accommodation.

Employers are encouraged to consult with legal counsel for advice on compliance with the PDA and other applicable laws with regard to employee rights to accommodation.

Robert Meyer is a partner at Poyner Spruill LLP. He represents employers in all aspects of labor and employment, including litigation of cases before federal courts and administrative agencies, and day-to-day advice and counsel.

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