Pregnancy Discrimination in the Workplace – The Supreme Court Weighs In on Employer’s Duties

In our previous blog post, we discussed and detailed the Pregnancy Discrimination Act and the stringent Enforcement Guidelines distributed by the EEOC this summer. On December 3rd, the United States Supreme Court will hear oral argument in Young v. United Parcel Service, and decide whether the EEOC interpreted the Pregnancy Discrimination Act correctly in deciding that an employer is “obligated to treat a pregnant employee temporarily unable to perform the functions of her job the same as it treats other employees similarly unable to perform their jobs, whether by providing modified tasks, alternative assignments, leave, or fringe benefits.”

Pregnant office worker walking with folders in the office




Young v. UPS arose because Peggy Young, a female delivery driver for UPS, became pregnant and asked for a light-duty assignment due to a twenty-pound lifting restriction recommended by her doctor and midwife. After Young approached the appropriate representative at UPS, her request was denied because her situation did not fall within the limited situations in which UPS will grant light-duty assignments. In response to UPS’s refusal to accommodate her, Young took unpaid leave and sued UPS for pregnancy discrimination. The federal district court and the Court of Appeals for the Fourth Circuit found in favor of UPS. Specifically, the Fourth Circuit held that UPS had “crafted a pregnancy-blind policy.” Subsequently, Young (the plaintiff-appellant) appealed to the United States Supreme Court for review, and the petition seeking review was granted. Two weeks later, the EEOC released new Enforcement Guidance on pregnancy discrimination in the workplace, discussed in detail in Monday’s blog.

Both Young’s and UPS’s arguments focus on the text of the Pregnancy Discrimination Act. Briefly, UPS relies on its Collective Bargaining Agreement, which establishes three situations where UPS may make alternative work assignments available to workers: (1) injuries sustained on the job, (2) employees who have a cognizable impairment under the ADA, and (3) drivers who lose their Department of Transportation certification because of a failed medical examination, a revoked or suspended driver’s license, or involvement in a motor vehicle accident. Thus, UPS asserts that light-duty assignments were unavailable under the policy to all employees, pregnant or not pregnant, who were unable to perform their normal work assignment due to lifting restrictions or other physical conditions. Likewise, UPS claims that if a pregnant worker did qualify under a category of accommodation, she would receive a light-duty work assignment. Lastly, UPS urges the Court to recognize that Young’s reading of the Pregnancy Discrimination Act would mandate special treatment for pregnant employees, obligating an employer to provide an accommodation to her if the same accommodation has ever been provided to any other employee for any reason, a difficult requirement for employers to meet.

On the other hand, Young claims that because light-duty assignments are provided for other employees, including employees who suffer off-the-job injuries or medical conditions that cause them to lose their Department of Transportation certification, UPS’s failure and refusal to provide accommodated workers who experience similar work restrictions due to pregnancy creates a disparity that violates the Pregnancy Discrimination Act’s requirement that “women affected by pregnancy, childbirth, or related medical conditions shall be treated the same … as other persons not so affected by similar in their ability or inability to work.”

As mentioned above, this important issue is now up to the United States Supreme Court to decide. However, it should be noted that the current law in Kentucky was established in a case before the Sixth Circuit, whose rulings apply to all Kentucky employers, and conflicts with the Fourth Circuit’s holding in Young v. UPS. In Ensley-Gaines v. Runyon, 100 F.3d 1220 (6th Cir. 1996), the Sixth Circuit determined that the district court erred in granting summary judgment for the defendant and that the plaintiff had established a prima facie case of discrimination where she alleged that the United States Postal Service discriminated against her in violation of the Pregnancy Discrimination Act by refusing to grant her benefits and alternative duties, which were available to temporarily disabled employees, while she was pregnant. Therefore, the Supreme Court’s decision in Young v. UPS could reverse or solidify the law pronounced by the Sixth Circuit in 1996, and is one for Kentucky employers to keep a close eye on.

Amanda Stubblefield





Amanda B. Stubblefield joined McBrayer as an Associate in 2014 as a member of the litigation department. She received her J.D. from the University of Kentucky College of Law in May of 2014 and was elected to the Order of the Coif. Ms. Stubblefield focuses her practice on general litigation, administrative law, and employment law.

This article is intended as a summary of state and federal law and does not constitute legal advice.

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Updated & Enhanced EEOC Enforcement Guidance – What Does it Mean for Employers and Pregnant Employees?

In 2013 alone, 5,342 discrimination claims were filed alleging pregnancy discrimination. The result – employers paid out over $17 million in monetary benefits last year. In fact, the EEOC’s statistics do not include monetary benefits obtained through litigation; thus, employers likely paid out a significant amount more than $17 million. To avoid adding to this figure, employers must pay particular attention to pregnancy discrimination in the workplace, be mindful of what is required to comply with federal and state law, and take precautions to ensure that no discriminatory practices exist in the workplace.

In 1978, Congress passed the Pregnancy Discrimination Act, providing protection for pregnant workers in hiring, firing, promotions, and fringe benefits. Specifically, the Pregnancy Discrimination Act provides that the prohibition against discrimination “because of sex” or “on the basis of sex” in Title VII of the Civil Rights Act of 1964 includes discrimination “because of or on the basis of pregnancy, childbirth, or related medical conditions.” Furthermore, the Pregnancy Discrimination Act requires that “women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related benefits, including receipt of benefits under fringe benefit programs, as other persons not so affected but similar in their inability to work.”

Recently, the EEOC has breathed new life into the Pregnancy Discrimination Act. In July of this year, the EEOC released updated enforcement guidance on pregnancy discrimination, which suggests protection for pregnant workers has increased. While EEOC Enforcement Guidance is simply “guidance” and does not establish law which courts are required to follow, these guidance documents do detail the EEOC’s interpretation of the Pregnancy Discrimination Act and are highly suggestive of how the EEOC would rule in discrimination charges pending before the agency.

The EEOC’s Enforcement Guidance offers insight into the EEOC’s interpretation of five important issues. First, the EEOC explains that the Pregnancy Discrimination Act’s protection extends beyond workers who are currently pregnant, and also covers workers discriminated against because of a past pregnancy or because of their potential or intention to become pregnant. Second, the EEOC directs that an employer cannot “force pregnant workers to take leave” or reassign or take adverse employment action against a pregnant worker, even if the employer believes such changes are in the best interest of the employee. In addition, the EEOC states that although “employers may claim that excluding pregnant or fertile women from certain jobs is lawful because non-pregnancy is a bona fide occupational qualification,” the defense is “an extremely narrow exception … and must be based on objective, verifiable skills required by the job, rather than vague, subjective standards.” Furthermore, the EEOC establishes that lactation is a medical condition related to pregnancy, and thus, “less favorable treatment of a lactating employee may raise an inference of unlawful discrimination.” Lastly, and perhaps most importantly, the EEOC’s Enforcement Guidance provides that even in healthy, uncomplicated pregnancies, employers must provide accommodations equivalent to those provided to non-pregnant employees who are similarly unable to perform their jobs, even if those other accommodations are provided pursuant to the Americans with Disabilities Act, workers’ compensation, or work-related injuries.

Pregnant office worker walking with folders in the office




The last of the EEOC’s pronouncements discussed above is at issue in a case currently before the United States Supreme Court. In Young v. United Parcel Service, the Supreme Court will consider the EEOC’s interpretation of the Pregnancy Discrimination Act and determine whether, and in what circumstances, the Pregnancy Discrimination Act requires an employer that provides work accommodations to non-pregnant employees with work limitations, to provide work accommodations to pregnant employees who are “similar in their ability or inability to work.” For an in-depth discussion of Young v. UPS, click here.

Amanda Stubblefield





Amanda B. Stubblefield joined McBrayer as an Associate in 2014 as a member of the litigation department. She received her J.D. from the University of Kentucky College of Law in May of 2014 and was elected to the Order of the Coif. Ms. Stubblefield focuses her practice on general litigation, administrative law, and employment law.

This article is intended as a summary of state and federal law and does not constitute legal advice.

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Kentucky Supreme Court Decision Drastically Impacts All Non-Compete Agreements

Earlier this year, the Kentucky Supreme Court reversed the Kentucky Court of Appeals’ holding in Creech, Inc. v. Brown, and held, in a landmark decision, that continued employment, standing alone, is no longer sufficient consideration to justify or support enforcement of a non-compete agreement. This reverses prior precedent that employer-employee agreements may be executed in exchange for merely retaining one’s job. While the case has an intricate and complex set of facts, this article focuses on the consideration requirement only, as the Kentucky Supreme Court chose not to address any other issues.

The case arosThe Employee Handbooke out of a dispute between and employee and employer over the extent to which the employer could enforce a non-compete agreement that was executed during the course of employment. Prior to this decision, employers routinely requested existing employees to execute non-compete agreements citing their continued employment as sufficient consideration for the agreement.



The Court of Appeals outlined a six factor test in determining whether the non-compete portion of the Agreement was enforceable. At the outset, this six factor test should be reviewed in drafting any non-compete agreement and could assist in defending against a claim that the non-compete is not enforceable. The Court of Appeals also held, as a matter of law, that the employee’s continued employment constituted sufficient consideration to support the Agreement. The parties sought discretionary review from the Kentucky Supreme Court.

On review, the Kentucky Supreme Court rendered the Agreement non-enforceable holding that continued employment is insufficient consideration and did not alter in any meaningful way the six-part test enunciated by the Court of Appeals. Although no clear guidelines were provided, it is clear from the Supreme Court decision that employers may consider more than just monetary consideration. In addition to an increased salary or wages, employers may also offer incentive compensation, additional training or a promotion as consideration. What consideration is sufficient will require an extensive fact-based evaluation of the business of the employer and the nature of the job of the employee.

From a best practice standpoint, employers must now be sure that non-compete agreements, if presented after employment, are coupled with adequate consideration. The party making the promise must be given a benefit and the party to whom the promise is made must incur a loss or detriment of some sort in order for a non-compete to be considered enforceable. What constitutes adequate consideration will vary depending upon the factual circumstances applicable to the employee and the industry he/she is employed in. Payment of monetary compensation and/or the promise of additional training may constitute adequate consideration but, once again, analysis of the prevailing factual scenario is critical.

In light of this decision, it is recommended that all employers review their existing non-compete agreements and identify which were executed after the employment relationship began, and review all agreements against the six part test. This will assist employers in determining whether the non-compete agreement could be rendered unenforceable as a matter of law for lack of consideration. As these agreements are essential to many businesses, this review is highly recommended.

Cindy Effinger





Cynthia L. Effinger, attorney with McBrayer, McGinnis, Leslie & Kirkland, PLLC is located in the firm’s Louisville office. Ms. Effinger’s practice is concentrated in the areas of employment law and commercial litigation. Her employment law practice is focused on drafting employment manuals and policies, social media, wage and hour, non-compete agreements and workplace discrimination. Ms. Effinger can be reached at or (502) 327-5400.

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Getting “Sandwiched” Into a Non-Compete Agreement

The Huffington Post recently reported that Jimmy John’s, the national sandwich chain, requires its workers to sign strict non-compete agreements. The agreement was disclosed as part of a lawsuit by employees, and many in the employment industry are wondering if such an agreement is really necessary for the company’s minimum wage workers. These agreements are usually saved for high-level executives or those subject to proprietary information – not the guy behind the counter making a sub.

According to the company’s agreement, a worker is prohibited from taking a job at a competing sandwich shop for a period of two years following employment at Jimmy John’s. A “competitor” is any business that derives 10 percent or more of its revenue from the sale of sandwiches, and that resides within 3 miles of a Jimmy John’s location. That means, in effect, that a worker would have to wait for two years before going to work, for instance, at Subway – quite a harsh consequence for these base-level employees.

Vintage Deli Sandwiches Rubber Stamp Sign





Non-compete agreements are fairly common in the business world, but the purpose of them is to keep a business’s trade secrets, proprietary information, and talent safe from the competition. While it may be legal to have hourly employees sign an agreement, that does not necessarily make it a smart business decision. Non-competes should be carefully drafted for a specific individual with thorough, applicable provisions – reducing them to part of a generic signing package is ineffective and may very well be considered unenforceable by a court. After all, though non-competition agreements are favored in Kentucky, courts have warned that they may not be enforced if “very serious inequities would result.” Lareau v. O’Nan, 355 S.W.2d 679, 681 (Ky. 1962).

It is highly unlikely sandwich makers or delivery men would be privy to information that could harm Jimmy John’s corporate structure. Considering the high turn-over rate associated with fast food employees, enforcing a non-compete would be particularly damaging to those who signed it and essentially unfeasible for the company to enforce. Indeed, several workers have sued Jimmy John’s seeking to invalidate the non-competition provision on the basis that it is overbroad and oppressive.

If your company includes a non-compete in every employment agreement, it is time to reconsider that practice. Generally, low-level employees should not be required to sign a contract that restricts their future employment.  Save the agreements for those employees who really do have the potential to jeopardize your business and before asking them to sign anything, consult with an employment law attorney about the applicable law in your state governing such agreements.

Drew Trimble is an associate with McBrayer, McGinnis, Leslie & Kirkland, PLLC and is located in the firm’s Lexington office. Mr. Trimble focuses his practice on General Litigation, Employment Law and Criminal Defense. He can be reached at or (859) 231-870, ext. 136.

This article is intended as a summary of federal and state law and does not constitute legal advice.

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Case to Watch: Integrity Staffing v. Jesse Busk

The U.S. SGavel on court deskupreme Court recently heard oral arguments in a case where the fundamental question concerned whether employers have to pay workers for time spent undergoing security checks as part of their entering and or exiting the workplace. The outcome of this case will likely affect how hourly employees are compensated for tasks outside their regular work shift.

The case at issue involves employees of Integrity Staffing Solutions who are responsible for handling merchandise shipped out of warehouses, like those of In 2010, these workers brought a class-action lawsuit claiming they were forced to spend up to a half hour daily without pay while they went through security screenings aimed at protecting against theft. The lawsuit sought back pay, overtime and damages. In April, the 9th U.S. Circuit Court of Appeals found the screenings were an integral part of the warehousing job, done for the benefit of the employer and that the employees should be compensated under the federal Fair Labor Standards Act. Integrity appealed the decision to the Supreme Court. According to Integrity, the mandatory screenings are akin to traffic jams when an employer is located a high-traffic area, “Both circumstances may result in minor inconveniences to employees, but neither is remotely the type of issue that should be subject to mandatory, government-imposed compensation.”

Although the case is limited to security checks, the Supreme Court’s ultimate decision could impact the compensability of other activities that occur before and after shifts. Retail groups and the U.S. Chamber of Commerce say the appeals court ruling, if upheld, could lead to hundreds of millions of dollars in potential liabilities for employers. During oral argument certain member of the Supreme Court expressed open skepticism of the employees’ arguments, so it is unclear what the final decision on this matter will be. But whatever the decision, it is clear that it will directly affect a great number of employers and their employees. Stay tuned to our blog for updates on this pivotal case.

Luke Wingfield





 Luke A. Wingfield is an associate with McBrayer, McGinnis, Leslie & Kirkland, PLLC. Mr. Wingfield concentrates his practice in employment law, insurance defense, litigation and administrative law. He is located in the firm’s Lexington office and can be reached at or at (859) 231-8780. 

This article is intended as a summary of federal and state law and does not constitute legal advice.


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FMLA Confidentiality Provisions Supersede OSHA Recordkeeping Requirements

The federal Occupational Safety and Health Review Commission recently issued an important ruling for employers who have to deal with conflicting reporting and confidentiality requirements under the Occupational Safety and Health Act (“OSHA”) and the Family Medical Leave Act (“FMLA”) of 1993, 29 U.S.C. §§ 2601-2654. In Secretary of Labor v. United States Postal Service, OSHRC No. 08-1547 (09/29/14), the Commission held that the FMLA’s confidentiality provisions supersede OSHA’s recordkeeping requirements.

An employee in the USPS distribution center in Seattle, Washington, submitted an application for leave under FMLA after she learned she was allergic to the dust generated at the facility where she worked sorting mail. The application included a statement from her doctor that she had “a serious health condition…caused by her work environment exclusively.” The postal service did not record the illness as work-related on its OSHA 300 log or 301 form pursuant to 29 C.F.R. Part 1904. The employee filed a complaint with OSHA. After an investigation, OSHA issued a citation for failure to record the illness, claiming that the USPS had knowledge that the employee’s condition was work-related.

The USPS contested the citation, arguing that a FMLA regulation, 29 C.F.R. § 825.500(g), required the postal service to maintain the information confidential; that the knowledge of the employee’s FMLA coordinator about the nature of the employee’s illness could not be imputed to the USPS; and that the employee’s supervisor had no independent knowledge of the illness. After a hearing, an Administrative Law Judge upheld the citation, including the $500.00 proposed penalty, and the USPS appealed. The Commission agreed with the employer on all points and reversed the decision.

This is an important and welcomed decision for employers and human resource managers, who routinely have to navigate a minefield of conflicting and confusing regulations. The upshot is that, if an employer receives information in connection with an application for leave under FMLA indicating that the employee’s condition may be work-related, the employer does not have to record the injury or illness on its OSHA logs and reports. Although this decision was federal, Kentucky’s Occupational Safety and Health Review Commission will likely follow it as precedent.

Kembra Sexton Taylor





Kembra Sexton Taylor, a partner located in the firm’s Frankfort office, practices in the areas of labor and employment, personnel, administrative, regulatory, appellate, and insurance defense law. She has extensive experience in representing clients regarding wage and hour, OSHA, state personnel, and other regulatory matters. She can be reached at or (502) 223-1200.

This article is intended as a summary of federal and state law and does not constitute legal advice.

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