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Thus, as with other protected categories like gender or race, a pregnant employee may establish her claim by showing that she was treated less favorably than "similarly situated" non-pregnant employees. But the standard for establishing illegal discrimination is much less clear under the second part of the PDA, which provides that employers must treat "women affected by pregnancy United Parcel Service, Inc.
Supreme Court wrestled with the interpretation of this duty. The plaintiff had requested "light duty" as an accommodation for her pregnancy-related lifting restriction of 20 lbs. This naturally raised the question of which group of employees should be considered "similarly situated" to the plaintiff for comparison purposes.
In other words, should she win her case because some non-pregnant employees with the same restrictions received an accommodation that she did not?
Or, should she lose because non-pregnant employees who, like her, did not meet the criteria of the policy, were also denied leave?
The Supreme Court, in the end, rejected both of these theories. Instead, the Court held that the real question was whether a jury could find that UPS's light duty policy was motivated by an intent to discriminate against pregnancy-related conditions. Thus, once a plaintiff demonstrates that she was denied an accommodation that others received, it becomes the employer's burden to justify its exclusion of pregnancy as a qualifying criterion under its policy.
That reason normally 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.
The plaintiff can create a genuine issue of material fact as to whether a significant burden exists by providing evidence that the employer accommodates a large percentage of nonpregnant workers while failing to accommodate a large percentage of pregnant workers.
The Court has thus seemingly created hybrid test that melds the separate liability theories pertaining to unintentional disparate impact claims and intentional disparate treatment claims. Thus, the Court has authorized a finding of liability based on a showing that a facially neutral policy of the employer has causes a disparate burden on pregnant women without a sufficiently compelling business justification.
Under this new standard, employers would be well-advised to explicitly include pregnancy related conditions under their short term disability plans even if doing so is "more expensive or less convenient.A year ago, someone I worked with (Jane) died. She was killed by an impaired driver while crossing the street after work.
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