2017 South Carolina Bar Convention Employment & Labor Law Section Seminar Friday, January 20, 2017 presented by The South Carolina Bar Continuing Legal Education Division SC Supreme Court Commission on CLE Course No. 170440 Onboarding and Offboarding in the Digital Age—Protecting Your Trade Secrets and Confidential Information Against Unfair Competition John C. Glancy Greenville, SC PDA in the Workplace Ashley C. Story Columbia, SC Christina L. Rogers Columbia Ashley C. Story, Duff, White & Turner, LLC Christy Rogers, Fisher & Phillips, LLP Roadmap The Law Regarding Pregnancy Discrimination Young v. UPS Other Case Updates EEOC Guidelines Future Trends – Election and the Law Tips Q&A Pregnancy Discrimination Act and Title VII PDA amended Title VII in 1978. Two pertinent clauses: 1. “because of or on the basis of pregnancy, childbirth, or related medical conditions “ 2. “[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.” Young v. United Parcel Service 575 U.S. ____ (2015) Employee brought action against her employer, alleging that she was the victim of pregnancy discrimination in violation of the Pregnancy Discrimination Act (PDA). • Federal District Court granted summary judgment in favor of UPS; • 4th Circuit held that the employee failed to present direct evidence of discrimination or establish a prima facie case of discriminatory discharge on account of pregnancy under Title VII; • Vacated by U.S. Supreme Court and remanded to 4th Cir. – opinion by Breyer with 6-3 vote. Scalia authored dissent. Young v. United Parcel Service – Young’s Facts 1. Plaintiff was a part-time UPS driver 6. UPS promised to provide temporary who became pregnant in 2006. alternative work assignments to employees “unable to perform their 2. Doc says she should not be required normal work assignments due to an on- to lift greater than 20 lbs. first 20 the-job injury.” weeks of pregnancy and no more than 7. UPS would “make a good faith effort to 10 lbs. thereafter. comply . with requests for a 3. UPS requires drivers to lift up to 70 reasonable accommodation because of lbs. and 150 lbs. with assistance. a permanent disability” under the ADA. 8. UPS would give “inside” jobs to drivers 4. Young informed by UPS occupational who lost DOT cert because of a failed health manager that she could not medical exam, lost driver’s license, or return to work during pregnancy involvement in a motor vehicle because she couldn’t meet lifting accident. requirements. 9. Capital Division Manager told Young (in 5. Same manger determined Young response to request for accommodation) didn’t qualify for temporary that her pregnancy was “too much of a liability” and could “not come back” until alternative work assignment. she “was no longer pregnant.” 10. Young stayed on LOA w/o pay. Returned in 2007. Young v. United Parcel Service – Young’s Facts (Accommodations)* 11. Some employees received accommodations while suffering various similar or more serious disabilities incurred on the job. 12. Some employees received accommodations following injury, record unclear as to on-the-job or off- the-job injury. 13. Several employees received “inside” jobs after losing DOT certification. 14. Some employees were accommodated despite the fact that their disabilities occurred off-the-job. 15. Testimony from a 10 year employee revealed that “the only light duty requested [due to physical] restrictions that became an issue were with women who were pregnant.” Young v. United Parcel Service – The Issues and the Majority Major issue addressed by Court – Court will not accept the Young the parties’ disagreement about the interpretation – can’t look at interpretation of the PDA’s second pregnancy as a “most-favored- clause: nation” status. “[employers must treat women That is to say, the term “other affected by pregnancy] the same persons” doesn’t mean “any other for all employment-related persons.” purposes . as other persons not so affected but similar in their UPS argues second clause just ability or inability to work.” defines sex discrimination to include pregnancy discrimination – “. .when a court must consider a rejected. workplace policy that First clause accomplishes that distinguishes between pregnant objective. and nonpregnant workers in light If we take that stance, second of characteristics not related to clause is rendered void or pregnancy.” insignificant. (Dissent argues it is not superfluous. Check with Scalia.) Young v. United Parcel Service – The Issues and the Majority “[T]he second clause was intended to do more than that (add pregnancy to definition of sex discrimination) – it “was intended to overrule the holding in Gilbert and to illustrate how discrimination against pregnancy is to be remedied.” What then? Plaintiff can show disparate treatment through McDonnell Douglas and indirect evidence. “by ‘showing actions taken by the employer from which one can infer, if such actions remain unexplained, that it is more likely than not that such actions were based on a discriminatory criterion illegal under’ Title VII.” Let’s Start with the Plaintiff – To establish a prima facie case on account of pregnancy under Title VII, the plaintiff must demonstrate that: (1) she was pregnant; (2) she suffered an adverse employment action; (3) at the time of the adverse employment action, she was performing her job satisfactorily; and (4) employer did accommodate others “similar in their ability or inability to work.” Burden-shifting … To Employer Back to Employee Show employer’s proffered reasons Reliance on “legitimate, non- are in fact pretextual. discriminatory” reasons for Show that employer’s policies denying accommodation. impose a significant burden on pregnant workers. Reason cannot normally Show that employer’s policies are consist of claim that it was not sufficiently strong to justify burden. “more expensive” or “less Create a genuine issue of material convenient” to add pregnant fact (GIOMF) as to whether women to those “similar in significant burden exists by providing evidence that employer their ability or inability to accommodates a large percentage of work.” (No more Gilbert.) nonpregnant workers while failing to accommodate a large percentage of pregnant workers. (See Young’s facts.) Outcome for Young Court determines there is a genuine dispute as to whether UPS provided more favorable treatment to at least some employees whose situations cannot reasonably be distinguished from Young’s situation. She introduced evidence of three separate accommodation policies. 4th Circuit did not consider combined effects of 3 policies. Court did not determine whether Young created GIOMF as to whether UPS’s reasoning was pretextual. Vacated and remanded for 4th Circuit to handle. Other PDA Case Updates Guessous v. Fairview Property Investments, LLC, 828 F.3d 208 (2016) Former employee bringing suit is an Arab-American Muslim woman form Morocco Alleged various claims under § 1981 and Title VII – including race, religion, national origin, and pregnancy discrimination Case out of Eastern District of VA (granted employer’s motion for summary judgment) Vacated and remanded by Court of Appeals – Judge Gregory authored opinion: (1) – GIOMF existed as to whether her termination (due to insufficient work) was pretext for retaliation; (2) – GIOMF existed as to whether reason for termination was pretext for race, religion, national origin, and pregnancy discrimination; (3) – continuing violation doctrine applied; and (4) – GIOMF existed as to whether supervisor’s comments to employee were based on racial animus. EEOC Pregnancy Discrimination Guide Four Major Parts Part I- Provides guidance on the prohibitions under Title VII of the Civil Rights Act, as clarified by the PDA Part II- Addresses the impact of the ADA’s expanded definition of “disability” on employees with pregnant- related impairments Part III- Discusses other legal requirements affecting pregnant workers Part IV-Provides best practices for employers Prohibitions Under Pregnancy Discrimination Act Employer cannot fire, refuse to hire, demote, or take any other adverse action against a woman if pregnancy, childbirth, or related medical condition was a motivating factor in the adverse action Pay Job assignments Promotions Layoffs Hiring Fringe benefits (leave and health issues) What is “pregnancy”? Under the new guidelines, pregnancy is very expansive and includes: Potential or intended pregnancy, including conception (or decision not to conceive) Pregnancy Termination of pregnancy Childbirth Post childbirth, including lactation and breastfeeding Lactation Employers must provide reasonable break times and a private place for breastfeeding employees to express milk If an employer allows employees to change their schedules or use sick leave for routine doctor’s appointments to address non-incapacitating medical conditions, then females must be able to use sick leave or change their schedules for lactation-related issues Equal Access to Benefits General Rule: Employers have to treat women affected by pregnancy, childbirth, or related conditions the same as other employees who are similar in their ability or inability to work with respect to light duty, alternative assignments, disability leave, or unpaid leave. Light Duty If an employer offers light duty for work-related conditions, it must offer light duty to pregnant workers who need it.