It was a difficult delivery, but the Supreme Court in Young v. UPS[1] gave birth to a new test in determining whether an employer has violated the Pregnancy Discrimination Act (“PDA”)[2].

Can companies monitor and read personal emails?  While this is no longer a novel question, companies continue to struggle with finding ways to protect their ability to access and monitor employees’ email activity.  A review of recent cases reminds us that while the answer is usually situational, the result almost always hinges on the strength and specificity of the company’s computer and email use policy.

In preparing for a recent mediation, I learned that that there has not been a verdict for a plaintiff presenting a pregnancy discrimination case in Kentucky for fifteen years.  That, however, does not mean that the cause of action is dead.  Employers should remain cognizant that the Pregnancy Discrimination Act prohibits employers from discriminating against female employees for “pregnancy, childbirth, or related medical conditions”. In fact, since the Hall v. Nalco Co. decision was rendered by the 7^th Circuit in 2008, Courts have consistently interpreted “related medical conditions” to include pre-pregnancy procedures such as in vitro fertilization procedures. Protecting yourself from a discrimination claim in this context may present unique difficulties as an employers’ institutional knowledge of an employee’s medical condition may depend on the degree to which an employee feels comfortable disclosing the reason for her medical treatment to her supervisor.  Of course, employers who intend to take either an active or passive adverse employment action against a female employee must be prepared to articulate a legitimate, non-discriminatory reason for the adverse employment action.  Employers should keep in mind that an adverse employment decision based upon a female’s medical condition, or absence from work due to an unspecified medical condition, could result in the first favorable verdict for a Plaintiff alleging pregnancy discrimination in recent memory.