On March 25th, the U.S. Supreme Court issued a very favorable decision for pregnant employees seeking protection under the Pregnancy Discrimination Act, 92 Stat. 2076, 42 U.S.C. §2000 et. seq. (“PDA”), that may have far reaching implications in other employment discrimination claims depending upon how one interprets the majority decision authored by Justice Breyer, and the concurring decision authored by Justice Alito. In Young v. United Parcel Service, 575 U.S. __, (slip op., March 25, 2015), the plaintiff alleged that the denial of an accommodation at the workplace constituted disparate treatment under the PDA, which requires employers to treat “women affected by pregnancy… the same for all employment –related purposes…as other persons not so affected but similar in their ability or inability to work.” The Court held that the plaintiff may make out a prima facie case by showing 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.
This was not a typical, liberal-versus-conservative split. The majority consisted of Chief Justice Roberts, and Justices Breyer, Ginsberg, Sotomayor and Alito. This majority vacated the decision in favor of UPS and remanded, but the Breyer decision and the Alito concurrence offer slightly different rationales.
While the facts are simple, the legal reasoning is more complex. The plaintiff was a UPS driver whose doctor advised her not to lift heavy packages when she became pregnant. UPS refused to reassign her temporarily during her pregnancy to a position where she would not have to lift heavy packages or permit co-workers to help her with the heavy lifting. The plaintiff was required to go on extended, unpaid leave, so she lost months of pay and was cut off from medical coverage. UPS has a policy of accommodating other people who temporarily cannot do heavy lifting due to medical restrictions indicated by a physician, and the plaintiff claimed that refusing to do so for her was discrimination. UPS claimed those reassignments were made only in very specific cases and they usually did not accommodate individuals who could not do their jobs for physical reasons (e.g., an employee who injured her back at the gym).
The Court sided with the plaintiff-employee and found that if an employer accommodates some temporary disabilities, it has to accommodate pregnancy. Most importantly, the Court held that if the pregnant employee can show that UPS accommodates some disabilities but not pregnancy, she wins, even if she evidences no discriminatory intent on the part of the company. In essence, a prima facie case could be established under the PDA by showing either “disparate treatment” or “disparate impact.” A “disparate treatment” violation is made out when an individual of a protected group is shown to have been singled out and treated less favorably than others similarly situated on the basis of his or her protected class or condition. A “disparate impact” violation is when an employer is shown to have used a specific employment practice, neutral on its face but that caused a substantial adverse impact to a protected group, and cannot be justified as serving a legitimate business goal for the employer. No proof of intentional discrimination is necessary under a “disparate impact” theory. Prior to this decision, the Supreme Court has been reluctant to expand the role of disparate impact in employment discrimination cases in recent years. Justice Alito’s concurring decision emphasizes that the language of the PDA is broader than other employment discrimination protections in that it expressly states that pregnant women must be “treated the same for all employment-related purposes… as other persons not so affected but similar in their ability or inability to work.” One could read into Justice Alito’s concurrence that the PDA is special because it expressly prohibits different treatment, and without that language there is no such thing as disparate treatment or impact. If that’s the case, the conservative swing votes had less to do with providing a stronger protection for pregnant women and more to do with statutory interpretation.
Whatever the respective rationales for the individual justice’s ruling in favor of the plaintiff, the end result expands the protections for pregnant women in the workplace. For employers, the Young decision demands that they evaluate the accommodations they provide to certain employees. If some temporarily disabled employees are being accommodated, pregnant employees must be accommodated as well.