Supreme Court “Splits The Baby” In Pregnancy Discrimination Case
Rejecting the stated arguments of both parties in Young v. United Parcel Service, Inc., the Supreme Court overturned the U.S. Court of Appeals for the 4th Circuit’s decision affirming the dismissal of the plaintiff’s claims of pregnancy discrimination. The plaintiff claimed that UPS’s policy of providing light duty to some non-pregnant workers but not to her violated the Pregnancy Discrimination Act (PDA). The Court found that the plaintiff had proffered sufficient evidence that UPS’s policy was discriminatory, such that her claims should not have been dismissed as a matter of law.
Facts of the Case
The PDA provides that pregnancy discrimination is a form of sex discrimination prohibited by Title VII. It further specifies 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.”
UPS had policies that provided light duty for workers in three categories: (1) those who had suffered on-the job injuries, (2) those who had “permanent” disabilities covered by the Americans with Disabilities Act (ADA), and (3) those who had lost Department of Transportation certifications. Light duty was not available for any other reason, including pregnancy. The plaintiff, a part-time driver, was required to lift up to 70 pounds. However, she had a pregnancy-related lifting restriction of no more than 20 pounds. UPS would not permit her to work while under a lifting restriction, and refused to provide light duty for her. Therefore, the employee remained at home without pay for the majority of her pregnancy, and lost her employee medical coverage. She then sued, arguing that UPS’s refusal to accommodate her pregnancy-related restriction was illegal disparate treatment under the PDA, since it had accommodated other workers who were similarly unable to work.
The trial court dismissed the plaintiff’s claims before trial, finding that, as a matter of law, UPS had not discriminated against plaintiff because of her pregnancy. It found that the workers in the three categories against whom the plaintiff sought to compare herself were too different to be appropriate comparators. The 4th Circuit affirmed the dismissal, stating that UPS had implemented a “pregnancy-blind policy” that treated all workers who did not fall into one of the three categories, which included the plaintiff, in the same manner.
The Court’s Ruling
Of particular note, the Court began its legal analysis by observing that, since the plaintiff’s pregnancy, Congress expanded the definition of “disability” under the ADA to include impairments substantially limiting an individual’s ability to lift, among other things. It further noted that the EEOC has interpreted this expanded definition to require employers to accommodate employees with temporary lifting restrictions, including those that were not related to on-the-job injuries. The Court, however, specifically declined to express any view regarding these statutory and regulatory changes.
The Court then turned to the interpretation of the PDA clause requiring the same treatment for pregnant employees as “other persons…similar in their ability or inability to work.” On the one hand, the plaintiff argued that an employer violated the PDA if it provided an accommodation only to a subset of workers and not to pregnant workers, even if other non-pregnant workers do not receive the accommodation. On the other hand, UPS argued that this clause simply defines sex discrimination to include pregnancy discrimination, such that accommodations provided to pregnant workers are compared to the accommodations to others within a “facially neutral category (such as those with off-the-job injuries).” The Court expressly rejected both interpretations.
The Court found that the plaintiff’s interpretation would grant pregnant workers “most-favored-nation” status, meaning that if an employer provided only one or two employees with an accommodation, it would then be required to provide similar accommodations to all pregnant employees regardless of any legitimate differences between the workers – such as the type of job, the criticality of the affected employee’s presence, seniority, or age. The Court determined that Congress did not intend to grant unconditional most-favored-nation status to pregnant workers. In fact, as the Court noted, an employer is normally permitted “to implement policies that are not intended to harm members of a protected class, even if their implementation sometimes harms those members, as long as the employer has a legitimate, nondiscriminatory, nonpretextual reason for doing so.” The Court also specifically rejected the EEOC’s 2014 pregnancy guideline on which the plaintiff and the government relied. In the guideline, the EEOC stated that “[a]n employer may not refuse to treat a pregnant worker the same as other employees who are similar in their ability or inability to work by relying on a policy that makes distinctions based on the source of an employee’s limitation (e.g., a policy of providing light duty only to workers injured on the job,”) and provided an example of such discrimination that was clearly based on the fact pattern in this case. The Court noted that the EEOC’s guideline was questionable based on its timing (issued after the Court accepted this case for consideration), consistency (it takes positions inconsistent with those previously advocated by the government), and thoroughness of consideration (the EEOC failed to explain the basis for this interpretation).
The Court also refused to accept UPS’ interpretation, finding that the clause provides more than a simple definition of sex discrimination to include pregnancy. The Court noted that the PDA was passed specifically to overturn the Court’s prior holding in General Elec. Co. v. Gilbert, which had found a company plan that provided nonoccupational sickness and accident benefits to all employees, but failed to provide such benefits for pregnancy, did not violate Title VII – and thus permitted employers to treat pregnancy less favorably than other conditions resulting in a similar inability to work.
Instead, the Court adopted a third approach. It applied the McDonnell Douglas framework, under which a plaintiff alleging that a denial of accommodation was disparate treatment under the PDA must first establish a prima facie case of discrimination, by demonstrating “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 demonstrate a legitimate nondiscriminatory reason for its refusal to accommodate her – in this case, its light duty policies. The burden then shifts back to the plaintiff to establish that the employer’s reason is actually pretextual. The Court stated, “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.”
In the present case, the Court stated that the plaintiff potentially can demonstrate a significant burden by providing evidence that the employer accommodates a large percentage of non-pregnant workers while failing to accommodate a large percentage of pregnant workers. The Court also suggested that the plaintiff could also argue the fact that UPS has multiple policies to accommodate non-pregnant employees suggests that its reasons for failing to accommodate pregnant employees are not sufficiently strong, and a jury could possibly infer intentional discrimination. The Court referenced its “longstanding rule” that plaintiffs can rely on circumstantial evidence to rebut the employer’s proffered reason – and more specifically, that the plaintiff can rebut such reason by showing how the policy works in practice. Finding that the plaintiff offered sufficient evidence to sustain a claim of discriminatory treatment and her claims should not have been dismissed as a matter of law, the Court returned the case to the lower court for further proceedings.
It is worth noting that this opinion was not unanimous. The dissent, which would have upheld the light duty policies as being “neutral,” castigates the majority for “craft[ing]…a new law that is splendidly unconnected” with the PDA. The dissent argues that the majority’s interpretation – that the PDA requires employers to refrain from adopting policies that impose “significant burdens” upon pregnant women without “sufficiently strong” justifications – is pure invention, not grounded in in the PDA or legal precedent.
Practical Impact of the Ruling
The Supreme Court majority’s decision recognizes that the PDA does not require employers to ensure that pregnant employees receive preferential treatment as compared with other employees, but the standard devised by the majority appears to require just that. In addition, the Court effectively has created a new and lower burden of proof for pregnant employees seeking to show that a denial of accommodation is disparate treatment under the PDA; a standard that permits discrimination to be inferred if the employer’s justification for a policy is not “sufficiently strong” to impose the burden on pregnant workers. We note, however, that because of the expansion of the ADA to include temporary conditions, such as pregnancy-related conditions that substantially limit a major life activity, employers will be subject to a reasonable accommodation obligation under the ADA for pregnant employees – and that the ADA’s mandate does not require consideration of whether such accommodations have been provided to other, non-pregnant employees.