Q&A with Sharon Gustafson

I attended the Supreme Court’s oral arguments on Young v. UPS earlier this month and was very excited to talk with Plaintiff Peggy Young’s lawyer, Sharon Gustafson, about the case.  Sharon will be among the speakers at an upcoming panel I am hosting, sponsored by the Women’s Bar Association and Sanford Heisler Kimpel.

Kate: For the benefit of our readers, Peggy Young delivered packages for UPS.  Her doctor recommended that, due to her pregnancy, she not lift more than 20 pounds.  UPS refused to allow that, and Peggy challenged that decision under the Pregnancy Discrimination Act.

(Blogger’s Note: For more information on the case, check out my colleagues’ blog post.)

Sharon, could you talk about when Peggy first came to you seeking advice?

Sharon: From the beginning, Peggy could not believe that UPS would treat her the way that it did.  This was in 2006, and she had been working at UPS since 1999.  She was an exemplary employee, and not just by her own estimation.  Through discovery, I have seen UPS’s employee records.  Unlike several of her colleagues, Peggy had never had one accident; she never asked for one accommodation.  And when she asked for a minor accommodation due to her pregnancy, UPS completely shut her out.  Peggy couldn’t believe that UPS’s treatment of her was legal or that UPS was treating women this way.

Kate: UPS refused to accommodate Peggy, even though it had a policy of accommodating other workers.  And whether UPS accommodated other employees and who they accommodated is relevant because the Pregnancy Discrimination Act requires employers to treat pregnant women “the same” as others who are not pregnant “but similar in their ability or inability to work.”

Sharon: Right.  And here, UPS accommodated workers with all sorts of medical conditions, not only those whose injuries occurred on the job.  I don’t think that the news coverage of this case has made that clear.

Kate: The press has noted that in addition to accommodating employers injured off the job, UPS also accommodated drivers who lost their abilities to drive as a result of drunk driving convictions.

Sharon: Yes, many in the press think that is really interesting, but what is more interesting to me is that UPS accommodated everyone who was unable to meet their DOT requirements, which included those who had problems with vision, hearing, high blood pressure, diabetes, and psychological and mental health problems.  This is a very large class of people that includes nearly everyone who needs an accommodation.  If a pregnant woman cannot compare herself to anyone within that class, who can she compare herself to?

Kate: Could a pregnant woman fall within one of these DOT categories and receive an accommodation from UPS regardless?

Sharon: Theoretically a pregnant worker could develop a condition on the DOT’s list, and UPS policy would then require an accommodation, but UPS could not point to a single pregnant worker it accommodated under those circumstances.

But if a worker needs a restriction not because she is sick but because she is pregnant, she will never qualify for an accommodation under UPS’s policy.

Kate: Are all of the DOT categories based on permanent restrictions?  In other words, could UPS say that it was not accommodating temporary restrictions (such as pregnancy) but it would accommodate those restrictions that were permanent?

Sharon: Not at all.   Under UPS policy, workers were accommodated if, for example, they could not work until their eyeglasses or hearing aid prescriptions were renewed, they suffered from sleep apnea or hernias.

Kate: Professor Naomi Schoenbaum argued in an earlier blog post that the importance of the case is overblown.  She points to the amendments to the Americans with Disabilities Act, which went into effect after UPS denied Peggy Young accommodations, and notes this law would require UPS to accommodate pregnant workers now.  Do you have thoughts on that?

Sharon: I think it is a bad idea to say that we do not need to worry about whether the PDA is enforced fairly because we might have another law that may address this situation.  In passing the PDA we have already made a decision that pregnant workers should be accommodated in certain situations—we need to interpret the PDA fairly.

We often give people who suffer wrongs multiple remedies to choose from, and that’s a good thing.

Kate: Do you have thoughts on whether the amendments to the ADA would have covered Peggy Young?

Sharon: I cannot imagine that the amendments to the ADA are going to solve all of the problems intended to be solved by the PDA.  For one thing, pregnancy is not a disability.  And I don’t mean just in a theoretical or philosophical way, but over and over again courts have said that pregnancy alone, without another condition, is not a disability.  I believe that courts are going to continue to interpret it that way.

Kate: In other words, you are concerned that even with the amendments to the ADA, pregnant workers are not going to be eligible for an accommodation unless they have some other medical condition or impairments.

Sharon: Right.  Peggy Young was not disabled.  There was nothing wrong with her.  Her only need for accommodation came from the fact that she was pregnant.

Upon learning that she was pregnant, UPS told her that if she wanted to work she needed a note from her doctor stating her restrictions.  And, like many doctors, her doctor recommended that she not lift more than 20 pounds.  Of course, it was not physically impossible for Peggy to lift.  She could have done so, but it was not recommended by her doctor.

All UPS had to do was tell Peggy that it was okay to have one of her colleagues assist her when she had a package more than 20 pounds, an event that happened at most only a couple of times per week.  Peggy had already worked this out with her colleagues, so UPS could have said fine to this informal arrangement and that would have been the end of it.

Kate: Peggy Young did not initiate the accommodation process?  She did not ask for accommodations until UPS told her that it needed a note stating her restrictions?

Sharon: Peggy Young did not initiate the process.  UPS asked her to define her restrictions.  In my experience, employers who want a pregnant worker to keep working will tell the worker to bring a “fit for duty” note from her doctor, and employers who want a pregnant worker to leave will tell the worker to bring a note from her doctor stating her restrictions, so the employer can then say: Ah ha – you cannot work here with these restrictions.

Kate: That sounds like evidence of intentional discrimination to me.

For our readers, the Pregnancy Discrimination Act does not require evidence that UPS intentionally discriminated against Peggy, as it required UPS to provide her with the accommodations it was providing other employees.  But it is also illegal for employers to intentionally treat workers different because they are pregnant.

Sharon: I think there is plenty evidence of intentional discrimination here.  For example, UPS management told Peggy Young to “go home” because she was “too much of a liability.”

We also have a sworn statement from a union representative who was involved in negotiating the UPS policy that the union tried very hard to get a pregnancy accommodation policy that was identical to the one provided to workers injured on the job, but UPS refused.  I keep hearing UPS’s policy called a “pregnancy-blind policy,” but there’s nothing pregnancy blind about it.  There is plenty of evidence that in developing its policy of who it would accommodate, UPS considered whether it would accommodate pregnant women and specifically decided it would not do so.

In fact, the union was successful in getting UPS to adopt a policy requiring them to grant light duty requests when they were required by state or federal law.  But UPS said that accommodating Peggy wasn’t required by law.  Instead of pointing to the policy as a reason for accommodating Peggy, which they could and should have done, they unilaterally interpreted the policy to not require light duty for pregnancy.

Kate: What?!  That seems crazy!  UPS agreed to the light duty provision but then interpreted so that they would never have to provide it.

Sharon: Isn’t that crazy?

In working on this case I keep thinking about riding the subway and seeing a young, healthy person who doesn’t give up his seat for an extremely pregnant woman.  As a society, we judge that person because we’ve decided we want to treat pregnant women better that that.  But in the workplace, many employers have not done so.

It is important for the Supreme Court to rule for Peggy Young, in part because there are all sorts of employers who could make the most minor adjustments to the job of a pregnant worker that would enable her to work.  But as long as the Court tells employers they do not have to do anything, they are going to do nothing.

Kate Mueting

Kate Mueting dedicates her working hours in the DC office of Sanford Heisler, LLP to advocating on behalf of women and to speaking on issues of pay equity and gender fairness.  Because she cares about it a ton, Kate also manages to talk about gender equity during non-working hours, although this is liberally sprinkled with references to her home state of Iowa and to her selection as Rookie of the Year by Nebraska’s marching band. 

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