Young v UPS – The Supreme Court’s decision interpreting the Pregnancy Discrimination Act (PDA)

This morning the Supreme Court released its decision in the Pregnancy Discrimination Act (PDA) Case, Young v. UPS. The case, at its core, is about how employers must treat and accommodate pregnant workers compared to other classes of employees. In Ms. Young’s case she was a part-time driver for UPS who, as a result of her pregnancy, could not lift more than 20 pounds. As a result of this limitation, UPS told Young she could not work. She was forced to stay home and ended up losing her employee medical coverage. Young filed suit, pointing to co-workers who were accommodated when they had similar limitations on their ability to work.

The Law – The Pregnancy Discrimination Act

The Pregnancy discrimination act, in relevant part, provides that “women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes, including receipt of benefits under fringe benefit programs, as other persons not so affected but similar in their ability or inability to work.” 42 U. S. C. §2000e(k) (emphasis mine). A fair reading of this law is that if you have two employees with the same limitation on their ability to work, and one of them happens to be pregnant, you need to treat those employees the same. In short, you cannot treat the pregnant woman worse simply because her limitation is a result of her pregnancy.

The EEOC’s position

After the Supreme Court granted certiorari (took the case), the EEOC promulgated guidance on the PDA. The reading was very favorable to pregnant employees.  It went as far to say that facially neutral policies could be in violation of the PDA: “[a]n employer must provide light duty for pregnant workers on the same terms that light duty is offered to employees injured on the job who are similar to the pregnant worker in their ability or inability to work.”) (July 14, 2014) EEOC Enforcement Guidance: Pregnancy Discrimination and Related Issues, § I.C.1. (emphasis mine).

Ultimately, the Court did not go as far as the EEOC wanted and refused to adopt such an interpretation.

The Supreme Court’s Decision

This decision is not an absolute victory for pregnant workers. Indeed, the Court split the proverbial baby. Instead of adopting the EEOC’s reading, or going the other way and further eviscerating the PDA at the behest of employers like UPS, the court pushed the PDA back into the pre-existing analytical framework The Court had already established for discrimination cases .

That framework was created in McDonnell Douglas Corp. v. Green, 411U. S. 792, 802 (1973). Under that framework, the plaintiff has “the initial burden” of “establishing a prima facie case” of discrimination. Id., at 802. If she carries her burden, the employer has the opportunity “to articulate some legitimate, non-discriminatory reason[s] for” the difference in treatment. If the employer articulates such reasons, the plaintiff then has “an opportunity to prove by a preponderance of the evidence that the reasons . . . were a pretext for discrimination.”

In essence the Court acknowledged that Congress acted to protect women’s rights with the pregnancy discrimination act but it will not go as far as the EEOC:

The problem with Young’s [and the EEOC’s] approach is that it proves too much. It seems to say that the statute grants pregnant workers a “most-favored-nation” status. As long as an employer provides one or two workers with an accommodation—say, those with particularly hazardous jobs, or those whose workplace presence is particularly needed, or those who have worked at the company for many years, or those who are over the age of 55—then it must provide similar accommodations to all pregnant workers (with comparable physical limitations), irrespective of the nature of their jobs, the employer’s need to keep them working, their ages, or any other criteria.

We agree with UPS to this extent: We doubt that Congress intended to grant pregnant workers an unconditional most-favored-nation status. The language of the statute does not require that unqualified reading. The second clause, when referring to non pregnant persons with similar disabilities, uses the open-ended term “other persons.” It does not say that the employer must treat pregnant employees the “same” as “any other persons” (who are similar in their ability or inability to work), nor does it otherwise specify which other persons Congress had in mind.

Young v. UPS, 12-13.

In reaching its ultimate intepretation of the PDA the court deferred to McDonnell Douglas:

In our view, an individual pregnant worker who seeks to show disparate treatment through indirect evidence may do so through application of the McDonnell Douglas framework. That framework requires a plaintiff to make out a prima facie case of discrimination…

Conclusion

Today’s decision does not make the giant leap requested by the EEOC that would have granted super-protection to pregnant employees, it also does not eviscerate a pregnant worker’s rights. It draws a compromise between a pregnant worker always winning, or always losing, their case, by forcing courts to apply the McDonnell Douglas framework on a case-by-case basis. In that framework, an employee must demonstrate a prima facie case of discrimination, then the employer can justify its refusal by providing “legitimate, nondiscriminatory” reasons and finally the employee can come back and show that proffered reasons are in fact pretextual. For illustrative purposes, this means that if an employer accommodates a broad range of employees with limitations similar to those of a pregnant employee but refuses to similarly accommodate her, that pregnant employee will likely be successful in her claim of discrimination.

Ultimately, this decision leaves us without a bright-line rule about pregnancy discrimination. The facts of each case will ultimately determine the outcome, and that really, is how it should be. If you’re interested in reading more about EEO and discrimination law, please read our guide.

Fast Legal Answers: Failure to maintain a condition of employment

For my fourth post in the Fast Legal Answers series, I will discuss a common federal disciplinary charge: failure to maintain a condition of employment. This charge is unique in that it typically results in removal of the federal employee. Indeed, this means removal can stem from something fairly benign such as losing computer or building access. Accordingly, some agencies may try to use the failure to maintain a condition of employment charge to remove a trouble employee that has not engaged in other, more substantive, misconduct.

What are conditions of employment?

Conditions of employment include professional certifications, such as bar membership for attorneys, a commercial driver’s license for positions where driving is a requirement, medical credentials for medical professionals, or the ability to carry a firearm for law enforcement officers. Essentially, a condition of employment is any license, qualification, training, or certification that is necessary to perform a specific job.

security clearance (S, TS, TS-SCI, etc.) for national security positions is special condition of employment. As discussed further below, firings related to loss of a security clearances are harder to challenge and have limited appeal rights.

Other, less commonly cited conditions of employment include access to computer systems and government buildings.

What is an example of a failure to maintain a condition of employment?

Attorney’s that work for federal agencies are required to maintain active bar membership in at least one state. Let us assume our example attorney, John Smith, fails to pay his bar membership fees and fails to complete his required continuing legal education courses. As a result, the state bar rescinds his membership. Shortly thereafter, Mr. Smith’s agency finds out that he is no longer licensed by a state bar to practice law. The employing agency then initiates removal proceedings for failure to maintain a condition of employment. Absent procedural errors or other substantive misconduct, Mr. Smith’s removal for failure to maintain a condition of employment would likely be sustained by the MSPB.

What can I do if I am removed for failure to maintain a condition of employment?

If you a removed for failing to maintain a condition of employment, in some cases you can challenge your removal before the MSPB. You can read more about the process an MSPB case takes in our MSPB legal guide. This entails filing an appeal of the adverse action and potentially attending a hearing where the agency presents the evidence against you and a judge makes a determination as to whether the agency has met its burden of proof. See Adams v. Department of the Army, 105 M.S.P.R. 50, ¶ 10 (2007).  Note that the filing deadlines for an MSPB case are very short (30 days) and you should consult with an attorney as soon as you receive a notice of adverse action.

What rights do you have if you a fired because you lost a security clearance?

If you are removed from the federal service because you lost a security clearance, typically your rights are much more limited. That is because there are essentially two-tracks for reviewing adverse actions against government employees. Actions that are “for cause” are entitled to review, actions that are based on “national security concerns” such as the revocation of security clearance are not. The Supreme Court addressed this issue in Department Of Navy V. Egan, 484 U.S. 518 (1988), where it concluded the MSPB does not have authority to review the substance of an underlying security-clearance determination in the course of reviewing an adverse action.

Two track system illustrated:

Two track system, for cause firings vs. national security concerns federal adverse actions

 

Note that some agencies have special regulations related to removal of clearances and those administrative processes may control in your case. In all likelihood, however, you will not have the right to MSPB review of your removal. Instead, you will have to rely on whatever internal review has been established by your agency.

Conclusion

This is a complicated topic because there are many different ‘conditions of employment’ that can result in an adverse action if they are not maintained. Further, certain conditions of employment are treated differently than others with varying appeal rights. The most common example being security clearance determinations. It is important for employees to understand what, if any, conditions of employment exists related to their position and to be apprised of their rights and obligations related to those conditions. Finally, it is critical that if you are removed for failing to maintain a condition of employment that you contact and consult with an experienced federal employment law practitioner to get expert advice on this very unique area of law.

Hopefully you found this guide helpful. At this time we are not taking on any new clients. All information provided above is for reference purposes and should not be construed as legal advice. You should consult with a licensed attorney before taking any action in your case.

 

Fast Legal Answers: How do I prepare for my deposition?

For my third post in the Fast Legal Answers series I will change gears and go from purely legal advice to the more practical. Today, I will be talking about how to prepare for a deposition. I’ll go into the basics about what to expect when your deposition is being taken, common questions, and how to properly respond to especially tricky questions.

Essential things to know before getting your deposition taken

 

What is a deposition?

A deposition is just another way to get testimony from an individual. Typically depositions are taken during the discovery phase of a case.

When you give a deposition you are under oath. This means your deposition testimony has the same weight as if you were testifying in court. So, you should take it as seriously as if you were going to testify in front of a judge and jury even though you are just going into a conference room with a few attorneys and a reporter.

How long does a deposition last?

Typically a deposition will only last one full day. The length of any deposition depends on the complexity of the case itself and other factors, such as the start time and the number of breaks taken.

The rules related to to the maximum length of a deposition will depend on the court or administrative body hearing your case and if the attorney’s have made any special requests for a longer deposition. For example, the federal rules of civil procedure limit a deposition to one day and 7 hours total. FRCP 30(d)(1)

How do I prepare?

Your attorney should work with you the week before your deposition. The attorney should give you advice similar to the advice in this article related to how you should answer questions and when you should ask for clarification.

Obviously, the attorney will need to go over your case in great detail. Focusing on the key issues and explaining the likely questions you are going to get related to those issues. How you approach these questions could be critical to the outcome of your case. There is an old quote lawyers have about their client’s deposition:

You almost never win your case because of your client’s deposition, but you certainly can lose it if things go south.

Answering Questions – Tips and Advice

So the deposition is really all about answering questions the other side’s attorney will ask you. It is important that you make sure you understand the question that is being asked of you. You should also only answer the question being asked. This means you do not volunteer information.

Do not speculate

Questions like, “Why do you think Tom called you after the accident?” call for speculation. Sure, you can probably guess why Tom called you, but you certainly do not know what Tom was thinking and you shouldn’t speculate when you answer questions. A proper response to a question like this would be: “I’m not sure why Tom called me, he is the one who can answer that question.”

If you do not understand a question, ask for clarification

Attorneys sometimes ask terrible-compound-rambling-unclear questions. When they do, which will likely happen a few times in your deposition, simply ask them to rephrase. That way you are clear on the question being asked which allows you to respond appropriately.

Moreover, don’t guess, speculate, or feel forced to answer a question. If you honestly don’t remember, just say so. But do not make up an answer because you feel pressure to give one. If a question is unclear to you it is always appropriate to ask for clarification. Indeed, you should never answer a question you don’t understand.

Answer only the question asked

If a yes or no answer is appropriate then answer with a yes or no only. Volunteering information generally is not a good idea.

Don’t unnecessarily elaborate or volunteer information:

  1. Incorrect approach:
    1. Q: Have you seen the wizard of OZ?
    2. A: Yes, I really was terrified of those flying monkeys. I’ve had nightmares about them the last 30 years.
  2. Correct approach:
    1. Q: Have you seen the wizard of OZ?
    2. A: Yes.

Questions that might seem strange

When you first start your deposition the other attorney may ask you a few questions that sound strange. They may ask you if you have been convicted of a felony, are impaired or under the influence of drugs, or otherwise are have some limitation that would prevent you from answering truthfully and fully. These are foundational questions that are necessary to make sure you are in the right frame of mind. This  prevents you or your attorney from making the argument that the bad answers you gave in your deposition were the result of some medication or other impairment you were suffering from during questioning. Do not take these questions personally, and do not get thrown off by them.

Court reporter tips

Because the court reporter will be creating a transcript of the deposition it is important that only one party talk at a time. So, make sure the attorney finishes his or her question before you start your answer.

Also, clients commonly provide a yes or no answer by shaking their head or mumbling something like “uh-huh.” This leads to an ugly and unclear transcript. So, make sure you give an audible “yes” or “no” to all questions.

Three Golden Rules for depositions:

  1. Tell the truth.

  2. Don’t speculate. It is totally acceptable to say “I don’t know” or “I don’t remember” if that is the truth. But if you know the answer you would be committing perjury if you say “I don’t know” 

  3. Answer only the question asked. DO NOT VOLUNTEER INFORMATION. 

 

Closing

Giving a deposition can be very intimidating, especially if you have never experienced the process before. A good attorney will prepare you ahead of time and get you familiar with the process. They will also inform you of any “landmines” to avoid and issues that are critical to the case. The key is to remain composed and make sure you understand the questions that are asked of you. Go slow, take your time, and do not feel pressured to “make the other attorney happy” with you answers. Finally, if you follow my three golden rules above, you will avoid the majority of the issues that could lead to a bad deposition.

How to file an MSPB appeal (video guide)

Below is a step-by-step video guide to filing an MSPB appeal. It provides basic information like where you can download the appeal, how you complete the form, filing deadlines, and filing directions.

Click here to view the MSPB appeal form.

 

Fast Legal Answers: Federal Whistleblower Protection Act

Time for my second article in the Fast Legal Answers series. Today, I’ll be talking about the Federal Whistleblower Protection Act (WPA).

Whistleblower Protection Act

 

What is the purpose of the WPA?

At its core, the WPA is intended to prevent fraud, waste, and abuse in the federal government by encouraging employees to report violations and the mismanagement of public resources. The act does this by assuring whistleblowers protection from retaliation for disclosures that the make.

What are the core elements of a whistleblower case?

The key criteria present in a whistleblower case are that: 1) a personnel action is taken against 2) a covered employee because they made a 3) protected disclosure.

 What is a personnel action?

A personnel action is most commonly understood as it relates to the selection, or non-selection of an employee but it also covers other issues such as promotion or any decision related to pay or benefits. More specifically, the statute provides the following definition:

(A) “personnel action” means—

(i) an appointment;
(ii) a promotion;
(iii) an action under chapter 75 of this title or other disciplinary or corrective action;
(iv) a detail, transfer, or reassignment;
(v) a reinstatement;
(vi) a restoration;
(vii) a reemployment;
(viii) a performance evaluation under chapter 43 of this title;
(ix) a decision concerning pay, benefits, or awards, or concerning education or training if the education or training may reasonably be expected to lead to an appointment, promotion, performance evaluation, or other action described in this subparagraph;
(x) a decision to order psychiatric testing or examination;
(xi) the implementation or enforcement of any nondisclosure policy, form, or agreement; and
(xii) any other significant change in duties, responsibilities, or working conditions;

5 U.S. Code § 2302(a)(2)(A)

 Who is considered a covered employee?

A covered employee is defined by 5 U.S. Code § 2302(a)(2)(B). Generally, covered employees include current and former federal employees along with applicants to positions in the executive branch both in competitive and executive service.  Senior Executive Service positions are covered as well. Note that some agencies, specifically those involved in foreign and counter-intelligence operations, are excluded. Accordingly, employees from the Federal Bureau of Investigation, the Central Intelligence Agency, the Defense Intelligence Agency, the National Geospatial-Intelligence Agency, the National Security Agency, the Office of the Director of National Intelligence, and the National Reconnaissance Office are not considered covered employees. 5 U.S. Code § 2302(a)(2)(C)(ii)(I).

What sort of protected disclosures are covered by the WPA?

Covered employees are protected when they make any disclosure of information that they reasonably believe evidences: (1) a violation of any law, rule, or regulation; (2) gross mismanagement; (3) a gross waste of funds; (4) an abuse of authority; or (5) a substantial and specific danger to public health or safety. See 5 U.S. Code § 2302(b)(8).

Who do I have to make the disclosure to?

Typically, a disclosure to the individual involved in the violation is not sufficient to trigger whistleblower protection. The law has been interpreted to allow disclosure to a broad range of individuals. For example, disclosure can be made up the chain of command, to the heads of agencies and to members of congress. The party receiving the disclosure doesn’t need to be someone who can immediately stop or remedy the violation. So, if your supervisor is stealing money from your agency you reporting your knowledge of that misconduct back to the same supervisor wouldn’t be sufficient, but contacting his supervisor, or internal affairs, would.

Do I have to be the one who made the disclosure?

No. Whistleblower protection can be extended to individuals perceived as whistleblowers and individuals closely associated with actual whistleblowers. See Shelly v. Dept. of Treasury, 75 MSPR 411 (WPA protection attaches when employee “was perceived to have made, or was closely associated with someone who made, a disclosure protected under 5 U.S.C. § 2302(b)(8); the agency took or failed to take, or threatened to take or fail to take, a “personnel action” listed at 5 U.S.C. § 2302(a)(2)(A); and the appellant exhausted proceedings before OSC.”)

Who do I contact if I have been a victim of reprisal for my whistleblowing activities to?

The Office of Special Counsel (OSC). This is their standard form for reporting unlawful reprisal for whistleblowing activities. After your file your claim with the OSC they will investigate it. Then they may initiate an action on your behalf or issue you a right-to-file letter which allows you to pursue your whistleblowing case individually. It is critical that you make initial contact with the OSC and exhaust your administrative options prior to filing a formal action.

Where will me case be heard?

Cases are before the Merit Systems Protection Board. You can learn more about the MSPB at our MSPB law and discipline case legal guide.

Conclusion

Hopefully this quick overview of the WPA has answered some of the general questions you might have about whistleblower protections and whether or not you may qualify.

Note that nothing can substitute for specific legal advice tailored to the facts of your case.

If you love reading about the WPA, or want some materials to treat your insomnia, here are some additional resources related to the WPA:

Hopefully you found this guide helpful. At this time we are not taking on any new clients. All information provided above is for reference purposes and should not be construed as legal advice. You should consult with a licensed attorney before taking any action in your case.