In a divided decision, on March 25, 2015, the U.S. Supreme Court released a long-awaited ruling involving a pregnant worker’s claim under the Pregnancy Discrimination Act (PDA). In its ruling, the Court held that the worker could proceed with her lawsuit, because disputes remain as to whether her employer treated more favorably at least some non-pregnant employees whose situation could not reasonably be distinguished from hers. The majority of the Court forcefully rejected the 2014 guidance of the Equal Employment Opportunity Commission (EEOC) concerning the application of Title VII and the Americans with Disabilities Act (ADA) to the PDA, as it fell short on a number of fronts needed to “give it power to persuade.” Without ruling for either party, the Court adopted a new standard for courts to use when deciding PDA cases brought under a disparate treatment theory. Young v. UPS, 575 U.S. ___ (2015).
Despite the Court’s guidance, employers still will face many questions on what accommodations will be required in the future. The standards for “disparate treatment” and “disparate impact” cases may be more confusing in the future for employers who need to make decisions regarding whether and how to accommodate pregnant employees. As a result, employers are wise to respond carefully to accommodation requests by pregnant workers. Employers should review any policies that might have a disproportionate effect on pregnant workers, such as rules limiting job accommodations. In addition, employers should be careful to review restrictions on use of sick pay/sick time, leave eligibility outside of FMLA, lifting restrictions, and light duty assignments to determine: (1) if they disparately affect pregnant employees while accommodating others; and (2) what “strong” business rationale you can offer to defend the distinction.
Background: Pregnant Worker With Lifting Restrictions Denied Accommodation
Peggy Young was a part-time delivery driver for UPS when she became pregnant. Her doctor imposed a 20-pound lifting restriction during the first 20 weeks of her pregnancy, with a 10- pound restriction between 20 weeks and the birth. However, her driver position required she be able to lift up to 70 pounds individually and up to 150 pounds with assistance. As a result, she was placed on a leave of absence for much of her pregnancy.
UPS had policies and a collective bargaining agreement (CBA) under which it could permit accommodations in three circumstances: (1) when drivers had become disabled on the job; (2) when drivers lost their Department of Transportation certifications; and (3) when employees were disabled as defined by the ADA. Young did not fall within any of these categories so the company did not allow Young to work while under the lifting restrictions.
Young sued, claiming discrimination for the company’s refusal to accommodate her pregnancy-related lifting restriction. Young contended she should have been able to do light duty work, as the CBA provided light duty work for employees who had a work related injury, lost their DOT certification, or were otherwise disabled as defined by the ADA. Since the company offered accommodations for other types of persons with similar working restrictions, she argued, it was discriminatory not to offer light duty to her. UPS denied it discriminated against Young, asserting she did not fall within any of the three categories and it had treated her the same as it treated all others who did not fall within those categories. As a result, its decision could not be based on discrimination against pregnant employees.
The federal district court agreed with UPS, ruling that Young could not compare herself to those within the injured-on-the-job, DOT or ADA categories, because they were too different to be deemed “similarly situated” to her. It granted summary judgment to UPS and on appeal, the Fourth Circuit Court of Appeals affirmed, concluding “UPS has crafted a pregnancy-blind policy.” It explained Young had not been injured on the job, was not legally disqualified from driving (as is a person who has lost DOT certification) and was not disabled under the ADA (which then protected only those with permanent disabilities). Young appealed to the Supreme Court.
Notably, while the case was pending before the Supreme Court, UPS adopted a new guideline for handling pregnancy-related accommodation requests. In that new guideline, effective January 1, 2015, it now offers pregnant employees light duty or other accommodations under certain circumstances. Whether that intervening policy moots any subsequent litigation is yet to be determined.
And by contrast, the U.S. Postal Service says it has made no change to its policy and maintains the practice UPS used to follow.
Disparate Treatment Under McDonnell Douglas Framework
Young sued UPS under a theory that she had been intentionally treated differently based on her pregnancy (a disparate treatment type of case). The Supreme Court set out the analysis for an individual bringing a disparate treatment case under the PDA using indirect evidence of discrimination. Using the familiar McDonnell Douglas framework, the pregnant worker must show:
- she belongs to the protected class;
- she sought accommodation;
- her employer did not accommodate her; and
- the employer did accommodate others “similar in their ability or inability to work.”
The employer then has the chance to justify its failure to accommodate by offering legitimate, nondiscriminatory reasons for denying accommodation. The individual employee may then show that the company’s offered reasons are in fact pretext for discrimination.
Pregnancy Not “Most-Favored-Nation” Status
Key to the Court’s decision was the meaning of the second clause in the PDA which states 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.” The Justices grappled with which “other persons” must be the comparators for pregnant workers. The majority of the Court disagreed with the positions argued by each side.
Disagreeing with Young, the Court ruled the PDA did not grant pregnant workers an unconditional “most-favored-nation” status in which employers who provide one or two workers with an accommodation must provide similar accommodations to all pregnant workers, regardless of other differing factors. In fact, the majority noted disparate-treatment law allows an employer to adopt policies that ultimately harm some protected individuals as long as the employer has a legitimate, nondiscriminatory, nonpretextual reason for doing so.
But the majority of the Justices also disagreed that the second clause of the PDA simply defines sex discrimination to include pregnancy discrimination. Rather, the Court took a middle stance whereby the individual can point to other, non-pregnant workers with similar restrictions who were accommodated, but recognizing an employer may take other factors, such as seniority, nature of the workers’ jobs, hazardous conditions, etc., into account. Nonetheless, the Court stated an employer’s 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 whom the employer accommodates.”
Policies That Impose Significant Burden on Pregnant Employees Can Be Pretextual
Upon a showing by the employer of a legitimate, nondiscriminatory reason, the pregnant employee may show that the offered reason is actually pretext for discrimination. To do that, the Court stated the individual may offer evidence that the company’s policies impose a significant burden on pregnant workers and that the company’s offered reasons are not sufficiently strong to justify the burden, giving rise to an inference of intentional discrimination. A significant burden may be shown by evidence that the employer accommodates a large percentage of non-pregnant workers while denying accommodations to a large percentage of pregnant employees.
Employers should beware of the Court’s description of proving “pretext.” It appears to blend the analysis of disparate treatment claims (claims alleging intentional discrimination against an individual) with disparate impact claims (claims alleging unintentional discrimination based on neutral policies). And it is hard to square the Court’s language with long-established precedent holding that employers may lawfully make a mistake, have poor business judgment, or be unfair so long as the employer does not intentionally discriminate against an employee.
Based on the evidence presented below, the Court concluded Young had created a genuine dispute as to whether UPS provided more favorable treatment to at least some employees whose situation cannot reasonably be distinguished from hers. It is left to the Fourth Circuit to determine on remand whether Young also created a genuine issue of material fact as to whether UPS’ reasons for having treated Young less favorably than these other non-pregnant employees were pretextual.
EEOC Guidance Does Not Carry the Day
The Young decision does give employers some assistance when they must deal with EEOC guidance and other policy stances in the future. In Young, the Solicitor General argued the Court should give special, if not controlling, weight to a 2014 EEOC guideline concerning the application of Title VII and the ADA to pregnant employees. In that guideline, the EEOC took the position that employers should accommodate work restrictions due to pregnancy in the same way as they would accommodate an employee with a restriction due to a work-related injury. However, the Supreme Court bluntly criticized that position, explaining the guideline lacked the timing, “consistency,” and “thoroughness” of “consideration” necessary to “give it power to persuade.” The guideline was promulgated after certiorari was granted in the Young case; it took a position on which previous EEOC guidelines were silent; it was inconsistent with positions long advocated by the Government; and the EEOC failed to explain the basis for the guidance. Hence, the Supreme Court refused to defer to it.
Takeaways For Pregnancy Accommodations
The Court’s rejection of the EEOC’s recent guidance on the PDA is noteworthy because it allows employers to be skeptical about going to the lengths promoted by the EEOC in its guidance. That said, be careful when denying accommodations to individual pregnant workers, especially when your policies permit light duty or other accommodations for non-pregnancy-related work restrictions. In addition, the Court noted that Young’s case arose prior to the 2008 revisions to the definitions of disability under the ADA, so to the extent a pregnant worker’s condition falls within the more recent ADA disability definition, you need to consider ADA accommodations as well as PDA discrimination issues.