By Beth West
The United State Supreme Court issued its much anticipated decision in the case of Young v. UPS on March 24, 2015. As of now, Young’s pregnancy discrimination claim remains alive and well.
Below is a summary of the court’s ruling:
Factual and Procedural Background.
Young was a part-time driver for UPS. When she became pregnant, her doctor advised her that she should not lift more than 20 pounds. UPS, however, required drivers like Young to be able to lift up to 70 pounds. UPS told Young that she could not work while under a lifting restriction. Young subsequently filed a lawsuit under the federal Pregnancy Discrimination Act (the “Act”), claiming that UPS acted unlawfully in refusing to accommodate her pregnancy-related lifting restriction. She brought only a disparate-treatment (intentional) claim of discrimination, which a plaintiff can prove either by direct evidence that a workplace policy, practice, or decision relies expressly on a protected characteristic, or by using the burden-shifting framework set forth in the case of McDonnell Douglas Corp. v. Green. Under the McDonnell Douglas framework, the plaintiff has “the initial burden” of “establishing a prima facie case” of discrimination. If she carries her burden, the employer must have an opportunity “to articulate some legitimate, non-discriminatory reason[s] for” the difference in treatment. If the employer articulates such reasons, the burden shifts back to the plaintiff who has “an opportunity to prove by a preponderance of the evidence that the reasons . . . were a pretext for discrimination.” (cites omitted)
UPS filed a summary judgment motion in the District Court. In reply, Young presented several favorable facts that she believed she could prove. In particular, she pointed to UPS policies that accommodated workers who had lifting restrictions similar to hers because they were either injured on the job or had disabilities covered by the Americans with Disabilities Act (ADA). UPS policies also accommodated employees who couldn’t drive at all because they had lost Department of Transportation (DOT) certifications. Young argued that these policies showed that UPS discriminated against its pregnant employees because it had a light-duty-for-injury policy for numerous “other persons,” but not for pregnant workers. UPS responded that, since Young did not fall within the on-the-job injury, ADA, or DOT categories, it had not discriminated against Young on the basis of pregnancy, but had treated her just as it treated all “other relevant persons.”
The District Court granted UPS summary judgment, concluding, inter alia, that Young could not make out a prima facie case of discrimination under McDonnell Douglas. The court found that those with whom Young had compared herself—those falling within the on-the-job, DOT, or ADA categories—were too different to qualify as “similarly situated comparator[s].” The Fourth Circuit affirmed the District Court’s ruling and upheld summary judgment for UPS.
Supreme Court’s Review and Decision.
Young claimed that under the Act, as long as “an employer accommodates only a subset of workers with disabling conditions,” “pregnant workers who are similar in the ability to work [must] receive the same treatment even if still other non-pregnant workers do not receive accommodations.” The Fourth Circuit disagreed and said that it doubts that Congress intended to grant pregnant workers an unconditional “most-favored-nation” status, such that employers who provide one or two workers with an accommodation must provide similar accommodations to all pregnant workers, irrespective of any other criteria. According to the Fourth Circuit, the second clause of the Act, when referring to non-pregnant persons with similar disabilities, uses the open-ended term “other persons.” It does not say that the employer must treat pregnant employees the “same” as “any other persons” who are similar in their ability or inability to work, nor does it specify the particular “other persons” Congress had in mind as appropriate comparators for pregnant workers. Moreover, the Fourth Circuit said that disparate-treatment law normally allows an employer 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, non pretextual reason for doing so and there is no reason to think Congress intended its language in the Act to deviate from that approach.
UPS claimed that the Act’s second clause simply defines sex discrimination to include pregnancy discrimination. But according to the U.S. Supreme Court that cannot be right, as the first clause of the Act accomplishes that objective. Reading the Act’s second clause as UPS proposed would render the first clause superfluous. According to the high Court, an individual pregnant worker who seeks to show disparate treatment may make out a prima facie case under the McDonnell Douglas framework 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.” The employer may then seek to justify its refusal to accommodate the plaintiff by relying on “legitimate, nondiscriminatory” reasons for denying accommodation. That 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. If the employer offers a “legitimate, nondiscriminatory” reason, the plaintiff may show that it is in fact pretextual. 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. The plaintiff can create a genuine issue of material fact as to whether a significant burden exists by providing evidence that the employer accommodates a large percentage of non-pregnant workers while failing to accommodate a large percentage of pregnant workers. According to the Supreme Court, this approach is consistent with the longstanding rule that a plaintiff can use circumstantial proof to rebut an employer’s apparently legitimate, nondiscriminatory reasons.
Ultimately, the Supreme Court held that the record shows that Young 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, and found that 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 pretext for pregnancy discrimination.
Takeaway: Employers should review their accommodation and light-duty policies to ensure that they do not discriminate against employees based on a protected class, including pregnancy.