By: Claudia D. Orr
On March 25, 2015, the US Supreme Court vacated the Fourth Circuit Court of Appeals’ decision upholding the district court’s decision to dismiss a claim of pregnancy discrimination. The issue was whether, under the Pregnancy Discrimination Act (“PDA”), an employer that accommodates some workers with light duty, can deny light duty to a pregnant employee having similar medical restrictions. Young v United Parcel Service, Inc.
Peggy Young worked for United Parcel Service (UPS) as a part time driver. In this position, she was responsible for the pickup and delivery of packages that arrived by air carrier. Young had suffered several miscarriages before becoming pregnant again in 2006. Understandably cautious, her doctor limited Young to lifting no more than 20 pounds for her first 20 weeks of pregnancy, and thereafter she was limited to 10 pounds. Young’s position required her to lift up to 70 pounds by herself and 150 pounds with assistance. UPS refused to accommodate her lifting restriction forcing her to take a leave of absence.
Young filed a federal lawsuit claiming that UPS had violated the PDA by refusing to provide her with light duty. In it, she alleged that UPS accommodated other drivers who had similar restrictions but who were not pregnant. UPS denied violating the PDA, claiming it provides light duty to “certain” categories, but that it treated Young like all others who were not within those categories.
Title VII prohibits discrimination on the basis of sex. 42 USC 2000e-2(a). In 1978, Title VII was amended by the PDA, which added that discrimination on the basis of sex includes “because of or on the basis of pregnancy, childbirth, or related medical conditions.” The PDA 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…” 42 USC 2000e(k).
The Collective Bargaining Agreement required UPS to provide temporary alternative assignments to employees who could not perform their regular work because of an “on the job injury.” It also required UPS to make a good faith effort to comply with requests for reasonable accommodations for employees having disabilities under the Americans with Disabilities Act (“ADA”). Finally, the agreement required UPS to grant “inside jobs” to employees who lost their Department of Transportation certifications (either because of a failed medical exam, a lost driver’s license, or an accident). UPS was thus arguing that anyone else not within one of these three categories was treated the same regardless of their inability to perform their job duties.
The District Court dismissed the lawsuit because Young was not “similarly situated” to workers in those three categories and UPS had offered a legitimate nondiscriminatory reason for failing to accommodate pregnant workers. The Fourth Circuit agreed, finding the policy “pregnancy blind”. It found that Young was dissimilar from those disabled under the ADA because she was not “disabled” and her lifting limitation was only temporary and did not affect her major life activities. It further distinguished her from someone who is injured on the job (since her condition did not arise out of the workplace) and she was different from someone who lost their DOT certification since she did not have a legal obstacle preventing her from working. Young sought review by the US Supreme Court.
The Court focused on the meaning of the phrase “…as other persons not so affected but similar in their ability or inability to work.” Young argued that whenever an employer accommodates a subset of workers with disabling conditions, it must do so for the pregnant worker even if it still does not do so for other non-pregnant workers. Conversely, UPS argued that courts should compare how the pregnant worker is treated compared to others within a facially neutral category (such as those with off the job injuries who are not accommodated). The Court rejected both extremes.
The Court reviewed 2014 guidance by the Equal Employment Opportunity Commission that prohibited employers from offering light duty to employees who are injured on the job but denying it to the pregnant employee and found it unpersuasive. Instead, it held that an employee seeking to prove a violation of the PDA may do so by the familiar burden shifting analysis of the McDonnell Douglas framework.
Specifically, the plaintiff alleging a denial of an accommodation constituted disparate treatment needs to show (1) she belongs to a protected class (female/pregnant), (2) that she sought an accommodation, which was refused, and (3) that the employer accommodated others “similarly in their ability or inability to work.” The burden then shifts to the employer to articulate its legitimate, non-discriminatory reasons for denying the accommodation. That reason, however, cannot be that it is more expensive or less convenient to add pregnant women to the categories of workers it accommodates.
Once the employer articulates its reasons, the burden shifts back to the pregnant woman to show the reasons are in fact pretextual. In the context of PDA claims, the plaintiff will meet her burden if she shows that the employer’s policy imposes a significant burden on pregnant workers, that the reasons are not sufficiently strong to justify the burden, but rather when considered along with that burden, there is an inference of intentional discrimination. Evidence that the employer accommodates a large percentage of nonpregnant workers but fails to accommodate a large percentage of pregnant workers will create an issue of fact that must be resolved by the jury.
Under this interpretation of the PDA, the Fourth Circuit’s decision was vacated and the case was remanded for further proceedings consistent with the Court’s opinion. The Fourth Circuit will be required to apply the shifting burden analysis and determine whether Young presented sufficient evidence to prevent the dismissal of her claims.
Employers should review their light duty policies and practices. Some industries, such as long term medical care facilities, tend to have a lot of on the job injuries (e.g., back injuries from lifting patients) and tend to hire women who may become pregnant. The number of light duty requests may become a challenge without a solid policy. An experienced employment attorney, like the author, can assist in developing a light duty program that will comply with state and federal laws, yet reasonably control the number of employees performing light duty at any one time.
 The majority opinion written by Justice Breyer was joined by Chief Justice Roberts and Justices Ginsburg, Sotomayor and Kagan. Justice Alito concurred in the judgment. The remaining Justices (Scalia, Kennedy and Thomas) dissented.
This article was written by Claudia D. Orr, who is Chair of the Legal Affairs Committee of Detroit SHRM, and an attorney at the Detroit office of the law firm Plunkett Cooney. She can be reached at firstname.lastname@example.org or at (313) 983-4863.
Detroit SHRM encourages members to share these articles with others, inside and outside their organization, as long as its name and logo, and the author’s information, is included in the re-post of the article. March 2015.