On March 25, 2015, the U.S. Supreme Court in Young v. UPS held that a pregnant employee who seeks to show disparate treatment through indirect evidence may do so through the application of the well-established McDonnell Douglas burden-shifting framework. More specifically, the Court held that a pregnant worker can establish a prima facie case of discrimination by showing: (1) she belongs to a protected class; (2) she sought an accommodation; (3) the employer did not accommodate her; and (4) the employer accommodated others "similar in their ability or inability to work." If these criteria are established, an employer has the burden of production to proffer a "legitimate, nondiscriminatory" reason for denying the accommodation. The Court noted, however, that this reason generally cannot consist simply of a claim that it is more expensive or less convenient to add pregnant women to the category of those whom the employer accommodates. Once the employer proffers a legitimate, nondiscriminatory reason, the employee has the burden of persuasion that the reason is pretextual.
Issue in Young v. UPS
This case dealt with the interpretation of the second clause of the Pregnancy Discrimination Act ("PDA"). The first clause states that the PDA specifies Title VII's prohibition against sex discrimination applies to discrimination "because of or on the basis of pregnancy, childbirth, or related medical conditions." 42 U.S.C. §2000e(k). The PDA's second clause states that employers must 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." In other words, the Court grappled with the following questions: Does this clause mean courts must compare workers only in respect to the work limitations they suffer? Does it mean courts must ignore all other similarities or differences between pregnant and nonpregnant workers? Or does it mean that courts, when deciding who the relevant "other persons" are, may consider other similarities or differences as well? If so, which ones?
The plaintiff in Young was a part-time driver. Although all drivers were required to be able to lift items weighing up to 70 pounds, the plaintiff's duties generally included carrying lighter letters and packages. After the plaintiff became pregnant, she asked for a brief leave of absence. Shortly thereafter, the plaintiff submitted a doctor's note with a recommendation that she not lift more than 20 pounds, and asked for an accommodation to work light duty. The company refused these requests and did not allow her to return to work because lifting more than 20 pounds was an essential function of her job. Notably, UPS, as do many employers, accommodated on-the-job injuries with light duty assignments but did not offer light duty assignments to employees, male or female, who had medical conditions unrelated to a work injury. The plaintiff argued that the PDA requires employers to provide pregnant employees light duty work if it provides similar work to other employees in other circumstances. Both the U.S. District Court for the District of Maryland and the U.S. Court of Appeals for the Fourth Circuit held that the company's policy was lawful under the PDA because "where a policy treats pregnant workers and nonpregnant workers alike, the employer has complied with the PDA."
Supreme Court Decision
Young argued that if an employer accommodates even one or two employees, the employer must, as a matter of law, provide that same accommodation to all pregnant employees, irrespective of any other criteria. The Court rejected this interpretation, as Congress did not intend to grant pregnant workers an unconditional "most-favored-nation status" any time an employer accommoded a small subset of non-pregnant employees.
UPS argued that the second clause merely clarifies that sex discrimination includes pregnancy discrimination. Under this view, an employer may have a facially neutral policy, such as a policy that accommodates employees with work-related injuries with light duty, because pregnant employees or nonpregnant employees with injuries unrelated to work are treated the same since neither group is entitled to light duty. The Court rejected this interpretation because UPS's reading would render the first clause superfluous.
Instead, the Supreme Court held that a pregnant employee can establish a prima facie case by alleging the employer denied a request for an accommodation and the employer accommodated others "similar in their ability or inability to work." To prevail, however, a pregnant employee must still show that an employer's facially neutral policies impose a significant burden on pregnant employees and that the employer's legitimate, nondiscriminatory reasons are not sufficiently strong to justify the burden to give rise to an inference of discrimination. One way a pregnant employee can make this showing is if an employer accommodated a large percentage of nonpregnant employees while failing to accommodate a large percentage of pregnant employees. The Court noted that this approach, although limited to the PDA context, is consistent with its longstanding rule that a plaintiff can use circumstantial proof to rebut an employer's apparently legitimate, nondiscriminatory reasons for treating individuals within a protected class differently than it treats those outside the protected class.
In light of this decision, employers should reevaluate their facially neutral policies to ensure they have legitimate, nondiscriminatory reasons for treating pregnant employees differently under these policies. In addition, employers should be aware that in many states, a pregnant employee is entitled to reasonable accommodation in excess of federal law.
A more detailed discussion of this case and its implications for employers is forthcoming.