Young brought a lawsuit, claiming that UPS had provided light-duty accommodations to non-pregnant workers who had similar lifting restrictions. Therefore, she alleged that UPS had discriminated against her. UPS responded that the other drivers whom it had accommodated were either:
(1) drivers who had become disabled on the job,
(2) drivers who had lost their Department of Transportation (DOT) certifications, or
(3) drivers who suffered from a disability covered by the Americans with Disabilities Act of 1990 (ADA) [as a side note, the ADA Amendments Act of 2008, enacted after Young’s case arose, subsequently expanded the ADA to include temporary lifting restrictions like Young’s].
The district court dismissed Young’s claim on summary judgment, agreeing with UPS that Young was not similar to the employees UPS accommodated. The Fourth Circuit Court of Appeals affirmed. The Supreme Court, however, reversed the Fourth Circuit.
The Supreme Court, in an opinion by Justice Breyer, noted that the Pregnancy Discrimination Act contains two important clauses:
(1) The first clause specifies that Title VII’s ban on sex discrimination applies to discrimination “because of or on the basis of pregnancy, childbirth, or related medical conditions.”
(2) The second clause says 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.”
The Court held that the meaning of the second clause was ambiguous. It could mean, as Young argued, that pregnant women must be afforded “most favored nation” status. That is, if an employer gives special treatment to any group of employees who are “similar in their ability or inability to work” as pregnant women, the employer must give the same treatment to pregnant women. Otherwise, the employer violates the Pregnancy Discrimination Act.
Justice Alito, in his concurring opinion, gave one example of the consequence of this interpretation:
“Suppose, for example, that an employer had a policy of refusing to provide any accommodation for any employee who was unable to work due to any reason, but that the employer wished to make an exception for several employees who were seriously injured while performing acts of extraordinary heroism on the job, for example, saving the lives of numerous fellow employees during a fire in the workplace. If the ability to perform job tasks was the only characteristic that could be considered, the employer would face the choice of either denying any special treatment for the heroic employees or providing all the same benefits to all pregnant employees.”
The Court rejected this interpretation as implausible.
UPS argued that the second clause should be read to merely clarify that “pregnancy discrimination includes disfavoring pregnant women relative to other workers of similar inability to work.” Under UPS’ interpretation, pregnant women who fall within some broader category (such as, “workers who become disabled off the job”) are not discriminated against if everyone in the larger class (“workers who become disabled off the job”) is treated the same. But, the Court held, this interpretation would render the second clause superfluous, because no one would understand the first clause’s ban on “pregnancy discrimination” to somehow exclude “disfavoring pregnant women relative to other workers of similar inability to work.” Moreover, Congress meant to overturn a decision, General Electric Co. v. Gilbert, 429 U. S. 125 (1976), that involved a facially-neutral policy that provided “non-occupational sickness and accident benefits to all employees.” The Gilbert court ruled that pregnancy was neither a “sickness” nor an “accident,” and thus the employer could exclude pregnancy benefits from its policy. Under UPS’ argument, the Pregnancy Discrimination Act would not have overturned the holding in Gilbert, because the pregnant women in Gilbert were not being disfavored compared to similarly-situated workers.
The Court charted a middle course between these two interpretations. It held that a pregnant worker could make out a circumstantial case of pregnancy discrimination using the McDonnell Douglas framework typically used in Title VII discrimination cases, by showing:
(1) that she belongs to the protected class,
(2) that she sought accommodation,
(3) that the employer did not accommodate her, and
(4) 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 pregnant worker by relying on “legitimate, non-discriminatory” reasons for denying her an accommodation. But, the Court cautioned, that reason normally cannot consist simply of a claim that it is more expensive or less convenient to accommodate pregnant women. If the employer offers an apparently “legitimate, non-discriminatory” reason for its actions, the plaintiff may seek to show that the employer’s cited reasons are in fact a pretext for discrimination. The plaintiff may create a question of fact for a jury by providing sufficient evidence that the employer’s policies impose a significant burden on pregnant workers, and that the employer’s “legitimate, non-discriminatory” 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.
As is relevant to Young’s case, the Court found evidence that the combined effect of UPS’ exemptions to its “no light duty” policy might have been, as one witness testified, that “the only light duty requested [due to physical] restrictions that became an issue” at UPS “were with women who were pregnant.” The Fourth Circuit, the Court held, did not consider the combined effects of UPS’ policies, nor did it consider the strength of UPS’ justifications for each when combined. It therefore remanded the case back to the Fourth Circuit for further consideration.
Justice Alito’s concurrence succinctly noted the weakness of UPS’ justification for accommodating drivers who lost their DOT certification, but not workers who became pregnant:
“[T]he legal obstacle faced by drivers who have lost DOT certification only explains why those drivers could not continue to perform all the tasks required by their ordinary jobs; it does not explain why respondent went further and provided such drivers with a work accommodation. Petitioner’s pregnancy prevented her from continuing her normal work as a driver, just as is the case for a driver who loses DOT certification. But respondent had a policy of accommodating drivers who lost DOT certification but not accommodating pregnant women, like petitioner. The legal obstacle of lost certification cannot explain this difference in treatment.”
While the Court limited its holding to the Pregnancy Discrimination Act, Young potentially allows plaintiffs in a broad array of Title VII discrimination cases to show an employer’s facially-neutral policy was shot through with enough exceptions to render it a pretext for discrimination. Just because employees were allegedly treated differently due to some existing policy of the employer does not mean the case can be dismissed on summary judgment, unless the employer can also justify whatever exemptions to that policy it made for other employees. It also allows leeway for an employee to overcome summary judgment by showing that the impact of a workplace policy falls so overwhelmingly and unjustifiably on a single group as to give rise to an inference of intentional discrimination.
The experienced attorneys at Bailey & Ehrenberg PLLC handle a wide variety of employment discrimination claims in litigation, and also provide counseling on employment law issues. We can be contacted via www.becounsel.com or at 202-331-1331. This article is not intended to constitute legal advice and should not be relied upon for that purpose.