Yesterday the U.S. Supreme Court issued the much anticipated opinion in a pregnancy discrimination claim, Young v . United Parcel Service.
For context, the claim in Young v UPS arose under the Pregnancy Discrimination Act (PDA). The PDA was added to Title VII (the gold-standard in terms of civil rights law prohibiting workplace discrimination) to overcome a prior Supreme Court ruling that allowed employers to treat pregnant female workers less favorably based on being pregnant.
There are two anti-discrimination provisions under the PDA: the first prohibits pregnancy bias as a form of discrimination based on sex; the second prohibits employers from treating female employees who become pregnant different than other employees who perform the same sort of work. And this second prohibition was at issue in the Young v UPS case.
The New Framework for Analyzing Pregnancy Discrimination Claims
In this regard, the specific issue in the case was relatively straight-forward and was framed as follows:
Whether, and in what circumstances, the Pregnancy Discrimination Act, 42 U.S.C. § 2000e(k), requires an employer that provides work accommodations to non-pregnant employees with work limitations to provide work accommodations to pregnant employees who are “similar in their ability or inability to work.
The U.S. Supreme Court’s answer to this question, however, was anything but straightforward. Specifically, in a 6-3 opinion, the Court came up with essentially a variation of the McDonnell Douglas analysis – a bedrock employment law shifting burdens test – that is to be applied to pregnancy accommodation claims. Under this test, a female employee who claims her employer discriminated against her because of her pregnancy and her employer must go through a sort of back-and-forth legal match with her employer as follows:
- The female employee must initially show that she is in the protected group, i.e., (i) she was pregnant; (ii) that she asked to be accommodated because she could not fulfill her normal job duties; (iii) the employer refused to accommodate her; and (iv) the employer did actually provide an accommodation for others who are just as unable, or unable, to do their work temporarily. In sum, this initial showing is focused on showing that the employer’s refusal to accommodate a pregnant employee was the likely result of intentional bias.
- If the employee successfully makes the preceding showing, the employer must respond by showing that its workplace policy was not biased against pregnant workers, but was a legitimate, non-discriminatory neutral policy. However, the Court specifically noted that the employer’s reason “cannot consist simply of a claim that it is more expensive or less convenient to add pregnant women to the category of those (“similar in their
ability or inability to work”) whom the employer accommodates. If this showing is made by the employer, the legal burden shifts back to the employee.
- The employee must now show that the employer’s articulated neutral reason was not genuine, but only a pretext for bias. The employee can refute the employer’s reason by showing that the workplace policy puts a “significant burden” on female workers, and the policy is “not sufficiently strong” to justify that burden.
Practical Applications of the Pregnancy Discrimination Analysis
Our reading of the Court’s opinion is that at the end of the day, this last step in analyzing pregnancy discrimination claims essentially comes down to determining the negative impact an employer’s policy has on female workers, which is far different than requiring a plaintiff to show an intentionally biased policy. In support of this assessment, the Court reasoned:
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 nonpregnant workers while failing to accommodate a large percentage of pregnant workers. Here, for example, if the facts are as Young says they are, she can show that UPS accommodates most nonpregnant employees with lifting limitations while categorically failing to accommodate pregnant employees with lifting limitations. Young might also add that the fact that UPS has multiple policies that accommodate nonpregnant employees with lifting restrictions suggests that its reasons for failing to accommodate pregnant employees with lifting restrictions are not sufficiently strong—to the point that a jury could find that its reasons for failing to accommodate pregnant employees give rise to an inference of intentional discrimination.
Justice Antonin Scalia and Justice Clarence Thomas joined in a dissenting opinion and Anthony M. Kennedy wrote a separate dissent. Both dissents argued that the majority simply made up an analytical framework that had no basis in the law. However, for anyone familiar with a Scalia dissent, a summary can never do the real thing justice; Here is an excerpt:
Faced with two conceivable readings of the Pregnancy Discrimination Act, the Court chooses neither. It crafts instead a new law that is splendidly unconnected with the text and even the legislative history of the Act. To ‘treat’ pregnant workers ‘the same . . . as other persons,’ we are told, means refraining from adopting policies that impose ‘significant burden[s]’ upon pregnant women without ‘sufficiently strong’ justifications … 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.
Employer and Employee Take-Aways
The Court rejected the position pushed by advocates for the employer and the employee side of the equation. The end result was that female employees received less legal protections than argued for and employers fell short of avoiding claims of pregnancy bias they were pushing for. How this plays out remains to be seen as the U.S. Supreme Court sent the case back to the trial court to apply this newly minted framework so it will be interesting to see what result the trial court reaches.
In the meantime, the best piece of advice for employers I’ve seen on this issue comes from employment attorney Jon Hyman: “My practical take for handling pregnant workers remains unchanged. Unless you can unequivocally demonstrate that you’ve never provided an accommodation to a disabled worker, you should be prepared to offer the same to your pregnant workers.”
On a separate note, Justice Kennedy’s dissent is worth reading for its practical and brutal honesty about the issues pregnant women face in the workplace. Having represented parties on both sides of the issue, one cannot help but agree with what the Justice says, even if you disagree with what should or can be legally done. In his view:
… there is no showing here of animus or hostility to pregnant women. But as a matter of societal concern, indifference is quite another matter. There must be little doubt that women who are in the work force—by choice, by financial necessity, or both—confront a serious disadvantage after becoming pregnant. They may find it difficult to continue to work, at least in their regular assignment, while still taking necessary steps to avoid risks to their health and the health of their future children. This is why the difficulties pregnant women face in the workplace are and do remain an issue of national importance.
For more information about pregnancy discrimination and other workplace issues, contact Michigan employment attorney Jason Shinn. Mr. Shinn has been practicing in the are of federal and Michigan employment law for over 14 years, representing companies and individuals. His most meaningful work, however, is working with employers to meet their obligations under federal and Michigan employment laws in order to cultivate a culture where employees can succeed in the workplace.