On March 25, 2015, the U.S. Supreme Court announced its decision in the much-awaited Young v. United Parcel Service, Inc. pregnancy discrimination case, as we first reported in our Supreme Court Decides Young v. United Parcel Service, Inc.” legal update two days ago. The Court rejected both parties’ and the Equal Employment Opportunity Commission’s (EEOC) proposed interpretations of the Pregnancy Discrimination Act (PDA) and announced a new framework for determining whether an employer’s distinction between causes of work restrictions that results in denying accommodations to pregnant workers is unlawful under the PDA.
Young, who had a pregnancy-related 20-pound lifting restriction, challenged UPS’s practice of providing light-duty assignments to employees with work restrictions only when the restrictions related to (1) on-the-job injuries, (2) disabilities as defined by the Americans with Disabilities Act (ADA) and (3) loss of DOT certification.
The U.S. Supreme Court rejected both parties’ and the EEOC’s suggested interpretations of the PDA:
- Young suggested that if an employer accommodates any subset of workers with restrictions, pregnant workers who are similar in their ability to work must also receive accommodation. The Court rejected Young’s approach, explaining that it seeks to grant pregnant workers “most-favored-nation” status, which was not Congress’s intent.
- UPS argued that the portion of the PDA at issue simply defines sex discrimination to include pregnancy discrimination, nothing more. The Court found this did not go far enough.
- Lastly, the Court rejected EEOC guidance that sought to prohibit an employer from treating pregnant workers differently than other employees who are similar in their ability or inability work “by relying on a policy that makes distinctions based on the source of an employee’s limitations.” The Court explained that while an agency’s interpretative guidance usually warrants deference, the circumstances here “severely limit[ed]” the EEOC's power to persuade. The Court noted in particular that the EEOC guidance was issued only after the Court agreed to review the Young case.
Rather than adopting the interpretation of any of the litigants, the Court articulated its own analytical scheme. Using the burden-shifting McDonnell Douglas framework, a plaintiff can now make out a claim of pregnancy discrimination if she can show (1) she is pregnant; (2) she sought an accommodation; (3) the employer refused to accommodate her; and (4) the employer accommodated others similar in their ability or inability to work. Importantly, the Court’s description of this fourth element means that if a pregnant worker with, for example, a 20-pound lifting restriction, can point to any other employee who — for any reason — received an accommodation for a 20-pound lifting restriction, she meets her initial burden to demonstrate pregnancy discrimination.
If the employer can provide a legitimate, non-discriminatory reason for not accommodating the pregnant worker, the pregnant worker must show that the articulated reason was not the true reason for the employer's actions in order to prevail. But the Court appears to have raised the employer’s typical burden at this stage above the standard that applies in other types of discrimination claims. The Court cautioned that the employer’s reason for treating other categories of employees differently from pregnant employees “cannot consist simply of a claim that it is more expensive or less convenient to add pregnant women to the category of those ... whom the employer accommodates.” For many employers who provide light duty to employees with on-the-job injuries to help control their workers compensation costs, this cost-based differentiation may not establish the required “legitimate, non-discriminatory reason” for denying light duty to pregnant workers.
The Court further explained that a plaintiff may survive summary judgment if she can provide sufficient evidence that the employer’s policies impose a “significant burden on pregnant workers” and that the articulated reason for its actions is not strong enough to justify the burden. Evidence that the employer accommodates a large percentage of non-pregnant workers while failing to accommodate a large percentage of pregnant workers would, according to the Court, suffice. So it appears that if an employer provides accommodations to employees with restrictions resulting from on-the-job injuries but denies similar accommodation to pregnant employees with identical restrictions, a plaintiff can point to this discrepancy as evidence of intentional pregnancy discrimination.
Rather than apply its newly-crafted standard to the case at hand, the Supreme Court returned the case to the lower court for application, so we will see how that court and other courts apply the standard in real scenarios. However, employers should review their accommodation practices and policies and carefully analyze any policies that provide accommodation for any type of non-pregnancy-related medical condition but do not offer accommodation to pregnant workers. Under the new Young test, it seems clear that an employer must have more than cost or convenience reasons to explain any such difference in treatment.
Another important point is that this case pre-dated the Americans with Disabilities Act Amendments Act of 2008 (ADAAA), which greatly expanded the scope of persons who are considered disabled and, therefore, entitled to workplace accommodations. Under the ADAAA, even relatively minor impairments and restrictions may constitute disabilities if they are other than temporary, and there is no clear definition of "temporary." Some courts have found that a pregnancy-related restriction against “heavy lifting” is arguably a disability under the ADAAA. Now, with Young, employers will likely face both ADAAA and PDA claims for non-accommodation of pregnant workers.
In addition to light-duty assignments, pregnant workers may need other forms of accommodation such as more frequent restroom breaks, relief from extended periods of standing and time off work. If an employer provides a non-pregnant worker such accommodations but denies a pregnant worker the same accommodation, under Young, the employer must now have a persuasive reason for the difference, whether or not the pregnant worker is considered disabled under the ADAAA.
The new standard established by the Supreme Court is effective immediately, even in cases currently pending in court. Faegre Baker Daniels’ labor and employment lawyers will monitor courts’ application of the new standard closely and continue to update you on significant developments.