In a 6-3 vote, the Supreme Court today revived a pregnancy bias suit brought against United Parcel Service, Inc. (“UPS”) by one of its employees, Peggy Young. See Young v. United Parcel Service, Inc., No. 12-1226 (March 25, 2015). Together with recent statutory and regulatory changes to the Americans with Disabilities Act (the “ADA”), which expand the definition of “disability” under the ADA to include temporary restrictions originating off-the-job, today’s decision signals that employers should examine their policies regarding the accommodation of employees’ pregnancy-based restrictions.
By way of background, Peggy Young worked as a part-time driver for UPS, which required her to pick up and deliver packages weighing up to 70 pounds (and up to 150 pounds with assistance). In 2006, she became pregnant after several miscarriages and was told by her doctor that she could not lift more than 20 pounds during the first 20 weeks of her pregnancy or more than 10 pounds thereafter. In response, UPS informed her that she could not work while under the lifting restriction, and Ms. Young therefore stayed home without pay throughout most of her pregnancy. Ms. Young sued, alleging that UPS accommodated similarly situated employees under its collective-bargaining agreement, pursuant to which UPS provided “temporary alternative work assignments” to individuals who became disabled on the job, lost their Department of Transportation certifications, or suffered disabilities covered by the ADA. UPS argued that such individuals were dissimilar from Ms. Young (e.g., because Ms. Young was not injured at work, permanently disabled, or legally restricted from performing her duties) and, therefore, that Ms. Young’s discrimination claims failed. The district court granted summary judgment in favor of UPS and the Fourth Circuit affirmed.
In vacating the Fourth Circuit’s decision, the Supreme Court rejected both parties’ “polar opposite” interpretations of the Pregnancy Discrimination Act, which amended Title VII and provides that “women affected by pregnancy, childbirth or related medical conditions shall be treated the same for all employment-related purposes . . . as other persons not so affected but similar in their ability or inability to work.” See 42 U.S.C. § 2000e(k). Ms. Young’s interpretation would have required employers who accommodate certain employees to provide similar accommodations to all pregnant workers who are similar in the ability or inability to work, irrespective of the nature of their jobs, the employer’s need to keep them working, their ages or any other criteria. Conversely, UPS’s interpretation would have read the above-quoted language of the PDA to permit employers to deny pregnant women accommodations on the basis of a facially neutral policy, such as UPS’s lifting policy. In striking a middle path, the Supreme Court held that pregnancy-related disparate treatment claims under the PDA that are based on indirect proof (i.e., not direct evidence of animosity towards pregnant employees such as hostile remarks by a decisionmaker) are subject to the McDonnell Douglas burden-shifting framework. Ultimately, the Court noted that a plaintiff may reach a jury by “providing sufficient evidence that the employer’s policies impose a significant burden on pregnant workers,” including “evidence that the employer accommodates a large percentage of nonpregnant workers while failing to accommodate a large percentage of pregnant workers.”
Also notable, the Supreme Court rejected the government’s request that it give “special, if not controlling, weight” to the EEOC’s guidance which the agency issued in July 2014, while the case was pending before the Court:
“We have also held that the ‘weight of such a judgment in a particular case will depend upon the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors that give it power to persuade, if lacking power to control.’ These qualifications are relevant here and severely limit the EEOC’s July 2014 guidance’s special power to persuade. We come to this conclusion not because of any agency lack of ‘experience’ or ‘informed judgment.’ Rather, the difficulties are those of timing, ‘consistency,’ and ‘thoroughness’ of ‘consideration.’ The EEOC promulgated its 2014 guidelines only recently, after this Court had granted certiorari in this case. In these circumstances, it is fair to say that the EEOC’s current guidelines take a position about which the EEOC’s previous guidelines were silent. And that position is inconsistent with positions for which the Government has long advocated. …Nor does the EEOC explain the basis of its latest guidance. Does it read the statute, for example, as embodying a most-favored-nation status? Why has it now taken a position contrary to the litigation position the Government previously took? Without further explanation, we cannot rely significantly on the EEOC’s determination.”
In light of today’s decision, employers should review their accommodation programs to ensure that such programs provide for appropriate accommodations of pregnancy-related conditions in appropriate circumstances. The Court’s opinion indicates that such determinations will continue to be somewhat fact-specific, but casts a dim view on blanket arguments that pregnancy-related conditions can be categorically treated as different from conditions constituting a disability under the ADA.