Recently, in the case of Young v. UPS, the Supreme Court made an interesting if somewhat opaque ruling regarding pregnancy discrimination. The case involved the Pregnancy Discrimination Act, or PDA, which amended Title VII of the Civil Rights Act of 1964 to extend discrimination protections on the basis of sex to pregnant women, including those affected by pregnancy-related conditions and effects of recent childbirth.
The first clause of the PDA states that discrimination on the basis of pregnancy, childbirth or any medical condition related thereto is included in the category of prohibited sex discrimination. It is the second clause of the PDA that has inspired differing interpretations and which the Court considered in the Young case. The second clause states 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.
Justice Stephen Breyer wrote the majority opinion, and defined the Court’s task as application of that clause to the plaintiff’s disparate treatment discrimination claim, her claim that she had been treated less favorably than employees with her qualifications but outside of her protected class; that is, who were not pregnant. In doing so, the Court reiterated the rule that the issue of liability in a disparate treatment case turns on whether disability actually motivated the employer’s decision. However, the method used to arrive at that determination is anything but that simple.
As a part-time UPS driver plaintiff Peggy Young had been required to lift 70 pounds as an essential element of the position. During her pregnancy her doctor ordered her to lift no more than 20 pounds. She asked UPS for an accommodation but it refused. The rationale was that UPS accommodates only three conditions: on the job injury, loss of Department of Transportation licensure, and disability under the Americans with Disabilities Act. Because she did not qualify for an accommodation, Young’s only option at UPS was to go on unpaid leave, which resulted in the loss of her health insurance benefits during that time. As a result, she sued UPS in 2007.
At the federal District Court for the District of Virginia, UPS filed a motion for summary judgment, which the court granted. The District Court concluded that Young could not show direct evidence of discrimination, nor could she make a prima facie case of discrimination under the McDonnell Douglas framework. In order to do so she would need to show that similarly situated workers were treated better than she was. She indicated the employees in the three classes that UPS accommodated, but the court found them to be too different to her own situation to qualify as similarly situated. It added that Young had not created a genuine issue of material fact as to whether UPS’ stated legitimate reason for discrimination was pretextual.
Young appealed the District Court’s ruling and the 4th Circuit affirmed the lower court’s decision. The 4th Circuit said that UPS had created a policy that was “pregnancy-blind” and a neutral and legitimate business practice. It is important to note that although UPS allowed accommodation for ADA-qualifying disabilities, at that time the ADA did not apply to Young’s condition. Since that time the ADA has been amended and expanded in such a way that her condition would now qualify. Under the current ADA definition, Young would have qualified for an accommodation, but at that time she did not. After the 4th Circuit affirmed the District Court’s ruling, Young filed for review with the Supreme Court and the Court granted, citing lower courts’ uncertainty about, and inconsistent application of, the PDA.
In the majority opinion, Justice Breyer rejected both parties’ interpretations of the second clause of the PDA. The plaintiff had suggested that the clause meant that pregnant employees had what he described as “most-favored nation status,” such that if any employees were accommodated, pregnant employees must be eligible for similar accommodation. Justice Breyer’s opinion described that interpretation as too broad and inconsistent with legislative intent. Conversely, UPS had argued that the second clause did nothing more than state that pregnancy and related conditions were protected under the category of sex discrimination. The Court rejected that argument noting that the first clause of the PDA adequately stated as much, and that the second clause went further.
Instead, the Court adopted its own interpretation, holding that an individual plaintiff seeking to show disparate treatment through indirect evidence may do so through the McDonnell Douglas framework. The plaintiff must make out a prima facie case of discrimination, and may do so by showing actions taken by the employer from which one can infer discrimination. Thus a plaintiff alleging denial of accommodation in violation of the second clause of the PDA may make out a prima facie case by showing that she was pregnant, that she sought accommodation, that she was denied accommodation and that the employer accommodated others “similarly situated in their ability or inability to work.”
If the plaintiff makes such a prima facie case the employer may then seek to justify its refusal to accommodate by relying on legitimate non-discriminatory reasons. However, to be consistent with the Act, those reasons cannot be that it is less convenient or more expensive to also accommodate the pregnant workers. If the employer states a non-discriminatory reason, then the plaintiff may still succeed by showing that the reason offered was mere pretext for discrimination. Such a plaintiff may reach a jury on this question by showing evidence that the employer’s policies impose a significant burden on pregnant workers – such as where the employer accommodates a large percentage of non-pregnant workers but not pregnant workers – and that the offered reason is not sufficiently strong to justify that burden.
In Young’s case she can accomplish this if she can show that UPS accommodated a large percentage of non-pregnant workers with lifting restrictions but not pregnant workers with lifting restrictions. The Court noted that Young might also use UPS’s multiple policies accommodating non-pregnant workers with lifting restrictions but not pregnant workers with lifting restrictions as evidence that its non-discriminatory reason is not sufficiently strong.
Applying this logic, the Court vacated the 4th Circuit’s judgment, finding that Young had created a genuine issue of material fact as to whether UPS “provided more favorable treatment to at least some employees whose situations cannot be reasonably distinguished from” hers. Interestingly, the Court’s ruling is very narrow in that it does not address whether Young has created a genuine issue of material fact as to whether UPS’ reasons were pretextual. So the case now returns to the 4th Circuit for consideration of that very narrow issue.
It could be argued that the Court’s ruling on this matter is overly complicated and does little to clarify the application of the PDA in cases similar to Peggy Young’s. In his dissent, Justice Scalia, joined by Justices Kennedy and Thomas, offered that the Court had “created… a new law that is splendidly unconnected with the text and even the legislative intent of the [PDA].” He notes that the ruling requires employers to refrain from imposing “significant burden” upon pregnant workers without “sufficiently strong” justification, but that neither of those concepts has been supported with adequate authority.
Notwithstanding that dissent, for the time being, the analysis articulated by Justice Breyer is the manner in which an employer should consider whether its accommodation policies might be in violation of the Pregnancy Discrimination Act. Unfortunately, the Court has provided less than ideal clarity in how, exactly, that should be done.
Following Young, when faced with a request for an accommodation from a pregnant employee, an employer now must consider whether it has accommodated other employees who are “similarly situated in their ability or inability to work.” If the employer has made such an accommodation in the past, then most likely it will have to accommodate the pregnant employee unless it can set forth a legitimate, non-discriminatory reason for not making such an accommodation. As always when dealing with issues of this nature, the facts of each case must be analyzed on an individual basis.
The St. Louis employment attorneys at McMahon Berger have been representing employers across the country in labor and employment matters, including discrimination matters, for almost sixty years, and are available to discuss these issues and others. As always, the foregoing is for informational purposes only and does not constitute legal advice regarding any particular situation as every situation must be evaluated on its own facts. The choice of a lawyer is an important decision and should not be based solely on advertisements.