Supreme Court Forges New “Significant Burden” Interpretation of the Pregnancy Discrimination Act

On March 25, 2015, the Supreme Court of the United States settled a controversy surrounding an employer’s policy that provided light-duty work for certain employees (including some disabled employees) but not for pregnant workers. The case was brought by a worker who tried to show—through indirect evidence—that the policy resulted in the disparate treatment of pregnant workers. In an opinion delivered by Justice Breyer, the Court held that an individual pregnant worker may show disparate treatment via indirect evidence through application of the McDonnell Douglas framework. The Court also provided a new standard detailing how a pregnant worker who seeks to show disparate treatment may make out a prima facie case under the McDonnell Douglas framework. Young v. United Parcel Service, Inc., No. 12–1226, Supreme Court of the United States (March 25, 2015).

Background

According to a United Parcel Service, Inc. (UPS) policy, the essential functions for all drivers included the ability to lift packages weighing up to 70 pounds. Pursuant to a collective bargaining agreement (CBA) covering UPS drivers, the company offered alternative work to three groups of employees: (1) employees injured while on the job, to whom UPS offered light-duty work; (2) employees suffering from a permanent impairment cognizable under the Americans with Disabilities Act (ADA), to whom UPS offered light-duty work; and (3) certain drivers who had lost their certification by the U.S. Department of Transportation, to whom UPS offered an “inside job” (which is typically not considered light-duty work).

Under both UPS policy and the CBA, a pregnant employee could continue working as long as she could perform the essential functions of her job. However, she was ineligible for light-duty work for any limitations arising solely as result of her pregnancy.

Peggy Young was a delivery truck driver for UPS when she became pregnant. Young was instructed by her doctor that she should not lift more than 20 pounds for the first half of her pregnancy and that she should not lift more than 10 pounds thereafter. As a result, UPS informed Young that she was not permitted to continue working with her lifting restriction.

Young eventually went on an extended leave of absence without pay or medical coverage. She later filed suit claiming that UPS had refused to accommodate her pregnancy-related lifting restriction. Young argued that UPS had accommodated other drivers who were “similar in their . . . inability to work.” UPS countered that since Young did not fall under one of the three categories of employees to whom the company offered alternative work, it had treated Young as it had treated all other relevant persons.

The district court granted summary judgment in favor of UPS. On appeal, finding that UPS’s policy was facially neutral and a legitimate business practice, the Fourth Circuit Court of Appeals affirmed. The court ruled that “where a policy treats pregnant workers and nonpregnant workers alike, the employer has complied with the [Pregnancy Discrimination Act].” The Supreme Court eventually agreed to hear the case.

The Pregnancy Discrimination Act: The Second Clause Controversy

The Pregnancy Discrimination Act (PDA) added new language to the definitions subsection of Title VII of the Civil Rights Act of 1964. The first clause of the PDA includes pregnancy-related conditions within the definition of sex discrimination:

The terms “because of sex” or “on the basis of sex” include, but are not limited to, because of or on the basis of pregnancy, childbirth, or related medical conditions; . . .

The second clause prescribes how “women affected by pregnancy” should be treated:

. . . and women affected by pregnancy . . . shall be treated the same for all employment-related purposes, including receipt of benefits under fringe benefit programs, as other persons not so affected but similar in their ability or inability to work . . .

The Court noted that this case required it “to consider the application of the second clause to a ‘disparate-treatment’ claim—a claim that an employer intentionally treated a complainant less favorably than employees with the ‘complainant’s qualifications’ but outside the complainant’s protected class.”

Young argued that the UPS policy reserving light-duty work for certain employees, but not pregnant employees, violated the second clause of the PDA. UPS, as the Court put it, “takes an almost polar opposite view. It contends that the second clause does no more than define sex discrimination to include pregnancy discrimination.”

The Supreme Court’s Decision

The Court found that Young’s interpretation of the PDA, according to which pregnant and nonpregnant workers must be treated the same, “proves too much. It seems to say that the statute grants pregnant workers a ‘most-favored-nation’ status.” The Court also rejected UPS’s argument that the second clause merely clarifies the first clause, finding that “there is no need for the ‘clarification.’”

Instead, the Court interpreted the PDA as follows: an individual pregnant worker who seeks to show disparate treatment through indirect evidence may do so through application of the McDonnell Douglas framework. Accordingly, a worker alleging that an employer’s denial of an accommodation constitutes disparate treatment under the PDA’s second clause may establish a prima facie case 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.”

“Significant Burden” Standard

The Court also created a new “significant burden” standard. According to the Court, if an employer presents a legitimate, nondiscriminatory reason for its actions, a worker may reach a jury on the issue of whether the reason is pretextual

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.

Moreover, the Court explained that a worker 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 nonpregnant workers while failing to accommodate a large percentage of pregnant workers.”

According to the Court, “there is a genuine dispute as to whether UPS provided more favorable treatment to at least some employees whose situation cannot reasonably be distinguished from Young’s.” The Court thus vacated the Fourth Circuit’s judgment in favor of UPS and remanded the case for further proceedings.

The Court declined to give “special, if not controlling, weight”—as urged by the Solicitor General—to the Equal Employment Opportunity Commission’s (EEOC) pregnancy discrimination guidance (which was approved after the Court agreed to hear this case). Because the EEOC failed to explain the basis of the guidance, the Court found that “[w]ithout further explanation, we cannot rely significantly on the EEOC’s determination.”

Justice Scalia authored a critical dissent, which was joined by Justice Kennedy and Justice Thomas, and which Justice Breyer frequently addressed in the majority opinion. Justice Scalia accused the Court of crafting a new law “that is splendidly unconnected with the text and even the legislative history of the Act.” Critiquing the Court’s new standard, he stated,

Where do the “significant burden” and “sufficiently strong justification” requirements come from? Inventiveness posing as scholarship—which gives us an interpretation that is as dubious in principle as it is senseless in practice.

 

Practical Impact

According to a shareholder in the Indianapolis office of Ogletree Deakins, “The Young decision will have a significant impact on employers that accommodate nonpregnant workers but refuse to accommodate pregnant employees. If the employer’s policies impose a ‘significant burden’ on pregnant workers, and the employer’s legitimate, nondiscriminatory reasons do not justify that burden but instead give rise to an inference of discrimination, then a plaintiff likely will be able to reach a jury trial on her pregnancy claim. As the Court noted, a ‘significant burden’ can be shown by evidence that an employer ‘accommodates a large percentage of nonpregnant workers while failing to accommodate a large percentage of pregnant workers.’ Young, therefore, requires prudent employers to evaluate their current policies and practices to determine whether they significantly burden pregnant workers and, if they do, whether the non-discriminatory reasons for the policies or practices justify that burden.”