January 26, 2015

The U.S. Supreme Court continues to tackle labor and employment issues.  Employers must be ready to react as the decisions roll out.

• Young v. UPS, No. 12-1226

Issue: Whether the Pregnancy Discrimination Act, 42 U.S.C. § 2000e(k) (“PDA”), requires an employer to provide work accommodations to pregnant employees who are “similar in their ability or inability to work.”  Young claims UPS violated the PDA by improperly denying her light-duty work requested due to a doctor-recommended lifting restriction during her pregnancy.  Young was not given the same light-duty accommodation as non-pregnant employees with similar limitations. The 4^th Circuit found that UPS’ refusal to accommodate pregnancy was not discrimination, since Young did not prove UPS’s policies were intended to discriminate against pregnant women or resulted in different treatment.  Although the PDA requires pregnant workers to be treated the same as others who are “similar in their ability or inability to work,” UPS has argued that this does not require special treatment for pregnant workers.

• Mach Mining v. EEOC, No. 13-1019

Issue: Whether and to what extent a court may enforce the Equal Employment Opportunity Commission’s (“EEOC”) mandatory duty to conciliate discrimination claims before filing suit.  The EEOC sued Mach Mining under Title VII, asserting it engaged in systemic hiring discrimination against women, but Mach Mining sought dismissal, arguing that the EEOC did not first engage in statutorily-mandated good faith conciliation efforts before filing suit.  The 7^thCircuit held that the EEOC’s conciliation efforts were not subject to review by the courts, however, other federal courts have held the EEOC’s conciliation process is subject to court review, but the type and level of scrutiny varies between the circuits.  The Supreme Court’s decision regarding statutory interpretation of Title VII’s requirements will affect whether failure to engage in the conciliation process is available as an affirmative defense to employers and the decision may define just how aggressive the EEOC will conduct itself during the conciliation process.

• EEOC (Elauf) v. Abercrombie & Fitch Stores, No. 14-86

Issue: Whether an employer can be liable under Title VII for refusing to hire an applicant or discharging an employee based on a “religious observance and practice” only when it has actual knowledge that a religious accommodation was required and the actual knowledge resulted from direct, explicit notice from the applicant or employee.  Elauf, a Muslim woman who wore a hijab headscarf to her interview, never directly informed Abercrombie she was Muslim and needed an accommodation.  Abercrombie’s dress code forbade wearing “caps” at work and a district manager determined this prohibition extended to headscarves.  The 10^th Circuit found that Abercrombie could not be liable for religious discrimination, because Elauf did not provide notice of the need for accommodation in order to give Abercrombie the required actual knowledge of the religious conflict and, thus, the need for an accommodation.  The 10^thCircuit rejected EEOC guidance published in March 2014, providing that, in some instances, even without a specific request for an accommodation, it will be “obvious” that a particular practice is religious such that an accommodation is needed if it conflicts with a work policy.

These matters will be monitored and reported on as the Court renders its decisions.