Supreme Court Revives Pregnancy Discrimination Act Claim

By Allen Smith Mar 25, 2015
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A Pregnancy Discrimination Act (PDA) case decided by the U.S. Supreme Court on March 25, 2015, may be overshadowed by the Americans with Disabilities Act Amendments Act, enacted in 2008 and in effect since Jan. 1, 2009.

The Supreme Court decision shows that if employers offer benefits such as light duty to one group of employees, the businesses need to consider whether they are required to provide those benefits to pregnant employees, as well, according to Sally Barron, an attorney with Fisher & Phillips in Memphis, Tenn.

“Even though policies are neutral on their face, you have to look at their effect,” she said, noting that the case was in some ways a disparate impact case in disparate treatment’s clothing.

While the court criticized the Equal Employment Opportunity Commission’s (EEOC’s) guidance on accommodating pregnant workers, many employees who are pregnant now have disabilities under the Americans with Disabilities Act Amendments Act (ADAAA), so employers should still heed the portions of the guidance that discuss that, she suggested.

Portions of the guidance will have to be revised because of the PDA, said Barry Hartstein, co-chair of Littler’s EEO and Diversity Practice in its Chicago office. But the Supreme Court itself noted that its decision may be overshadowed by the ADAAA’s expansive definition of “disability,” as the plaintiff’s pregnancy preceded the ADAAA.

“As interpreted by the EEOC, the new statutory definition requires employers to accommodate employees whose temporary lifting restrictions originate off the job,” the Supreme Court said.

The court’s decision should encourage employers to treat pregnant employees’ accommodation requests on a case-by-case basis, as they do under the ADA, and engage in the interactive process for identifying an accommodation, Christopher Ward, an attorney with Foley & Lardner in Chicago and Los Angeles, told SHRM Online. But employers won’t have to treat pregnant employees as having a “most favored nation status” as they did under the EEOC guidance, he added.

“The decision also issues a clear and welcome message to employers that accommodating most nonpregnant workers with injuries or disabilities while refusing to accommodate most pregnant workers is against the law,” said Judith Lichtman, senior advisor with the National Partnership for Women & Families. “All employers should now re-examine their policies to ensure that pregnant women will not face discrimination on the job.”

But because of the ADAAA, all employers already should be engaging in the interactive process for identifying reasonable accommodations for pregnant employees with limitations, commented Felicity Fowler, an attorney with Haynes and Boone in Houston, who said the ADAAA, not this PDA case, was “the game changer.”

Lower Court Decision Vacated

In its decision, the Supreme Court held that the 4th U.S. Circuit Court of Appeals erroneously granted summary judgment to United Parcel Service (UPS) on the PDA claim of a driver who was denied work during her pregnancy because she had lifting restrictions.

Peggy Young wanted to work during her pregnancy in her regular job or a light-duty position, but her request was denied. She sued, claiming the company violated the law by failing to provide her the same accommodations it provided to nonpregnant employees with physical disabilities who were similar in their ability to work. UPS provided light duty to accommodate people injured on the job, individuals with disabilities covered by the Americans with Disabilities Act and drivers who lost their Department of Transportation certifications.

Arguments on Both Sides Rejected

The PDA provides in its second clause 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 Supreme Court noted in a decision written by Justice Stephen Breyer and joined by Chief Justice John Roberts Jr. and Justice Ruth Bader Ginsburg, Justice Sonia Sotomayor and Justice Elena Kagan. It rejected both the plaintiff’s and the defendant’s arguments for how this language applied and outlined a middle course where the plaintiff gets to make a PDA claim based on the McDonnell Douglas burden-shifting framework.

Young argued that the statute’s language “requires an employer to provide the same accommodations to workplace disabilities caused by pregnancy that it provides to workplace disabilities that have other causes but have a similar effect on the ability to work.” The court said that Young was contending that the PDA means that “whenever an employer accommodates only a subset of workers with disabling conditions, a court should find a Title VII violation if pregnant workers who are similar in the ability to work do not receive the same accommodation, even if still other nonpregnant workers do not receive accommodations.”

The Supreme Court wasn’t persuaded by Young’s position. “We agree with UPS to this extent: We doubt that Congress intended to grant pregnant workers an unconditional most-favored nation status,” the Supreme Court noted. “Disparate treatment law normally permits 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, nonpretextual reason for doing so.”

It also rejected EEOC guidance that said “an employer may not refuse to treat a pregnant worker the same as other employees who are similar in their ability or inability to work by relying on a policy that makes distinctions based on the source of an employee’s limitations (e.g., a policy of providing light duty only to workers injured on the job).”

Nor did the Supreme Court accept UPS’s “almost polar opposite view” that the statute “does no more than define sex discrimination to include pregnancy discrimination.” The Supreme Court noted that “UPS says that the second clause simply defines sex discrimination to include pregnancy discrimination. But that cannot be so. The first clause accomplishes that objective when it expressly amends Title VII’s definitional provision to make clear that Title VII’s words ‘because of sex’ and ‘on the basis of sex’ include, but are not limited to, because of or on the basis of pregnancy, childbirth or related medical conditions.”

McDonnell Douglas Framework

Young instead could resort to the McDonnell Douglas framework for proving a case with indirect evidence. “Thus, a plaintiff alleging that the denial of an accommodation constituted disparate treatment under the Pregnancy Discrimination Act’s second clause may make out a prima-facie case by showing, as in McDonnell Douglas, 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 set out its legitimate, nondiscriminatory reasons for denying her accommodation. “But consistent with the act’s basic objective, 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 (‘similar in their ability or inability to work’) whom the employer accommodates,” the court said.

The plaintiff then may show that the employer’s reasons are pretext for unlawful discrimination.

The court ruled that Young created a genuine dispute of material fact under McDonnell Douglas, and sent the case back to the 4th Circuit to determine whether UPS’s reasons for having treated Young less favorably than it treated nonpregnant employees were pretextual.

Justice Samuel Alito Jr. wrote separately in a concurrence, stating that it was “not at all clear that respondent had any neutral business ground for treating pregnant drivers less favorably than at least some of its nonpregnant drivers who were reassigned to other jobs that they were physically capable of performing.”

Dissent

Writing a dissent joined by Justice Clarence Thomas and Justice Anthony Kennedy, Justice Antonin Scalia wrote, “Dissatisfied with the only two readings that the words of the same-treatment clause could possibly bear, the court decides that the clause means something in-between. It takes only a couple of waves of the Supreme Wand to produce the desired result. Poof! The same-treatment clause means that a neutral reason for refusing to accommodate a pregnant woman is pretextual if ‘the employer’s policies impose a significant burden on pregnant workers.’ Poof! This is so only when the employer’s reasons ‘are not sufficiently strong to justify the burden.’ How we got here from the same-treatment clause is anyone’s guess.”

Scalia added, “Today’s decision can thus serve only one purpose: allowing claims that belong under Title VII’s disparate-impact provisions to be brought under its disparate-treatment provisions instead.”

The decision is Young v. United Parcel Service, No. 12-1226 (2015).

Allen Smith, J.D., is the manager of workplace law content for SHRM. Follow him @SHRMlegaleditor.

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