Why it matters
The U.S. Supreme Court decided the first of two major employment law cases this term when a 6-3 majority of the Court held that the McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), burden-shifting framework applies to a pregnant employee seeking to demonstrate disparate treatment through indirect evidence. The decision revives a suit brought by a former part-time driver for United Parcel Service (UPS) who claimed the company refused to let her work a light-duty job as an accommodation for her pregnancy. UPS pointed to a company policy to argue that the refusal was not discriminatory, and a federal district court and the Fourth Circuit Court of Appeals both agreed. But writing for the majority, Justice Stephen Breyer reversed, finding that the policy might violate the Pregnancy Discrimination Act (PDA) and that Young had established a prima facie case of discrimination, leaving the remaining McDonnell Douglas issues to the Fourth Circuit on remand. While all employers should review their policies and practices with regard to pregnancy accommodations in light of the decision, open questions remain. For example, the Court declined to take a position on the application of the updated Americans with Disabilities Act (ADA) with respect to its statutory analysis of the PDA. And the majority said employers are not per se required to provide light duty to pregnant employees simply because other workers are relieved of a heavier burden, but drew no clear line about where such a refusal becomes discriminatory. The decision will also have an impact on guidance issued by the Equal Employment Opportunity Commission (EEOC) released last year. Refusing to defer to the guidance, the Court wrote that the agency took a position (after the justices had granted cert in the case) about which the EEOC had previously been silent and inconsistent with positions for which the Government had long advocated.
After suffering multiple miscarriages, Peggy Young became pregnant in 2006. Her doctor advised her not to lift more than 20 pounds during the first 20 weeks of her pregnancy or more than 10 pounds thereafter. As a part-time driver for UPS, Young was required to lift parcels weighing up to 70 pounds.
She requested a light-duty job but her employer denied the accommodation. UPS policy permitted light duty for only certain employees: those injured while on the job, those who lost their Department of Transportation (DOT) certifications, and workers suffering from a disability covered by the ADA.
Young took an unpaid leave of absence for the remainder of her pregnancy. She then filed suit, alleging the company violated the PDA, which amended Title VII in 1978 to specify that the statute’s term “because of sex” includes “because of or on the basis of pregnancy, childbirth, or related medical conditions.”
A second clause in the PDA, Section 2000e(k)(2) added 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….”
Because other drivers who were similar in their inability to work were accommodated and she was not, Young said UPS’s failure to accommodate constituted a statutory violation.
But Young did not fall into any of the categories of “other persons” accommodated by the company—those injured on the job or disabled under the ADA—so the employer had not discriminated against her, UPS told the court. A federal district court judge and the Fourth Circuit agreed, finding the company’s policy to be “pregnancy blind.”
Justice Stephen Breyer authored an opinion reversing summary judgment for UPS.
Focusing on the second clause of the PDA, the majority considered who the relevant “other persons” should be when a pregnant employee seeks accommodations.
Young (and the Solicitor General) argued that the statute mandates that an employer provide the same accommodations to workplace disabilities caused by pregnancy that are provided for workplace disabilities that have other causes but have a similar effect on the ability to work.
On the other end of the spectrum, UPS contended that courts should consider the accommodations provided to pregnant women as compared to the accommodations provided to others within a facially neutral category, like off-the-job injuries.
Rejecting both positions, the majority strove for something of a middle ground. Young’s view would establish a “most favored nation” status for pregnant women, while UPS’s stance limited the second clause to merely defining sex discrimination to include pregnancy discrimination, something already accomplished by the first clause.
Instead, “an individual pregnant worker who seeks to show disparate treatment through indirect evidence may do so through application of the McDonnell Douglas framework,” Justice Breyer wrote, first making out a prima facie case “that she belongs to the protected class, that she sought accommodation, that the employer did not accommodate her, and that the employer did accommodate others ‘similar in their ability or inability to work.’ ”
The burden then shifts to the employer to justify its refusal by relying on “legitimate, non-discriminatory” reasons for denying the accommodation. Here, the Court noted, “that reason normally cannot consist simply of a claim that it is more expensive or less convenient to add pregnant women to the category of those (‘similar in their ability or inability to work’) whom the employer accommodates.”
If the employer presents such reasons, the plaintiff must then show that the reasons are pretextual.
“We believe that the plaintiff may reach a jury on this issue by providing sufficient evidence that the employer’s policies impose a significant burden on pregnant workers, and that the employer’s ‘legitimate, nondiscriminatory’ reasons are not sufficiently strong to justify the burden, but rather—when considered along with the burden imposed—give rise to an inference of intentional discrimination,” the majority wrote.
Plaintiffs can present evidence that the employer accommodates a large percentage of nonpregnant workers and fails to accommodate a larger percentage of pregnant workers, the Court suggested. For example, in the case at hand, Young claimed UPS accommodates most nonpregnant employees with lifting limitations and refuses to accommodate pregnant employees with such limits.
Remanding the case to the Fourth Circuit Court of Appeals, Justice Breyer said Young had already established her prima facie case, shifting the burden to UPS to provide a reason for refusing her accommodation.
Justice Samuel Alito authored a concurring opinion, joining Chief Justice John Roberts and Justices Breyer, Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan in the majority. Two dissenting opinions were filed, one written by Justice Antonin Scalia and joined by Justices Anthony Kennedy and Clarence Thomas, with Justice Kennedy adding a second dissent.
Calling the majority opinion “wrong from the start,” Justice Scalia said the correct reading of the second clause of the PDA “prohibits practices that discriminate against pregnant women relative to workers of similar ability or inability. It does not prohibit denying pregnant women accommodations, or any other benefit for that matter, on the basis of an evenhanded policy.”
To read the opinion in Young v. UPS, click here.