Executive Summary: On March 25, 2015, the United States Supreme Court issued an opinion that redefines the standard for disparate treatment claims under the Pregnancy Discrimination Act (PDA). In Young v. United Parcel Service, Inc., the Court applied the McDonnell Douglas burden-shifting standard to the plaintiff's PDA claim, but held that even where an employer offers an apparently legitimate nondiscriminatory reason for its actions, plaintiffs can, nevertheless, overcome this reason and establish pretext by providing sufficient evidence that the employer's policies impose a "significant burden on pregnant workers," and that the employer's legitimate, nondiscriminatory reason is "not sufficiently strong to justify the burden." The Justices split 6-3 with the lead opinion authored by Justice Breyer.
In 1978, Congress enacted the PDA as an amendment to Title VII of the Civil Rights Act of 1964, to clarify that discrimination because of or on the basis of pregnancy, childbirth, or related medical conditions constitutes unlawful sex discrimination under Title VII. The PDA was enacted in response to the Supreme Court's decision in General Electric Co. v. Gilbert, 429 U.S. 125 (U.S 1976), where the Court held that a disability plan that covered sickness and accidents, but which excluded absences related to pregnancy, was not discriminatory on the basis of sex.
Facts of the Case
Young, a United Parcel Service, Inc. (UPS) driver whose position required that she be able to lift parcels weighing up to 70 pounds, sued UPS alleging disparate treatment under the PDA because UPS refused to provide her with a light duty position after her doctor imposed a pregnancy-related, twenty-pound lifting restriction. Young argued that the PDA, specifically the second clause, which provides 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," required UPS to provide her with a light duty job similar to those that UPS allegedly provided to employees injured on-the-job, employees disabled under the Americans with Disabilities Act (ADA), and employee drivers who had lost their Department of Transportation (DOT) Certification.
The trial court held that Young could not make out a prima facie case of discrimination because the alleged comparators, i.e. employees injured on-the-job, were disabled, or who had lost their DOT certification, were not similarly situated. The Fourth Circuit affirmed the summary judgment decision, and Young appealed to the Supreme Court.
The Supreme Court's Opinion
Utilizing the McDonnell Douglas burden-shifting standard, the Supreme Court held that a plaintiff alleging the denial of an accommodation under the PDA establishes a prima face case of disparate treatment by showing that: (1) she belongs to the protected class; (2) she sought accommodation; (3) the employer did not accommodate her; and (4) the employer did accommodate others similar in their ability or inability to work. The Court explained that an employer may justify its refusal to accommodate by presenting a legitimate, nondiscriminatory reason for denying the accommodation, but the employer could not rely upon the rationale that it was more expensive or less convenient to accommodate a pregnant employee than other non-pregnant employees.
The Supreme Court further held that where an employer offers an apparently legitimate nondiscriminatory reason for its actions, plaintiffs can create a question of pretext, and thereby avoid summary judgment, 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."
In crafting this new, burden-shifting analysis, the Court refused to rely on Enforcement Guidance promulgated by the EEOC in July 2014 (after the Supreme Court accepted certiorari in this case), because the timing, consistency, and thoroughness of the guidance limited its persuasiveness. Moreover, the Supreme Court rejected the "most favored nation" position taken by both Young and the EEOC in its Enforcement Guidance – that is, that the PDA requires employers who provide one or two workers with an accommodation to provide similar accommodations to all pregnant workers, regardless of other criteria.
The Supreme Court remanded the case to the Fourth Circuit to determine whether, under the Court's new pretext standard, UPS's reason for treating Young less favorably than other non-pregnant employees was pretextual.
The Supreme Court's new standard creates more ambiguity and uncertainty for employers. As Justice Scalia articulates in his dissenting opinion, the Court's decision in Young potentially opens employers up to liability for pregnancy discrimination, and compensatory and punitive damages, even where there is no discriminatory intent if a facially neutral policy has a disproportionate impact on pregnant employees.
Employers' Bottom Line
The bottom line is that prevailing on a pregnancy discrimination case just became substantially easier for employees. In light of the Court's decision, employers should review their policies and practices to ensure that, regardless of the individual circumstances, those practices and procedures do not impose any adverse effect on pregnant employees. Said another way – if an employer accommodates some employees with disabilities, it must also accommodate pregnant employees.