Delivering a New Standard-The Pregnancy Discrimination Act and Young v. UPS
Delivering a New Standard
The Pregnancy Discrimination Act and Young v. UPS
By Laura Bradshaw Tucker
When Peggy Young filed a lawsuit against United Parcel Service in 20081 under the Pregnancy Discrimination Act (PDA), the rights of pregnant workers under the 30-year-old law were not in good health.
The PDA, passed in 1978 as an amendment to Title VII of the Civil Rights Act in reaction to a logically loopy decision by the U.S. Supreme Court in General Electric Co. v. Gilbert,2 was intended to prevent discrimination on the basis of pregnancy. The first clause of the PDA states simply the terms “‘because of sex’ or ‘on the basis of sex’ include, but are not limited to, because of or on the basis of pregnancy, childbirth, or related medical conditions.”3 The second clause requires pregnant women to be “treated the same for all employment-related purposes … as other persons not so affected but similar in their ability or inability to work.”4
Young, a UPS driver whose job description required the ability to lift 70 lbs., had asked her employer to accommodate a 20-lb. lifting restriction during her pregnancy. The company allowed accommodations to several broad classes of workers, but accommodations for pregnancy were excluded.5 Young was forced to take unpaid leave for the next six months. Young discovered that, as far as the courts were concerned, she was not similar to other persons, because the cause of the condition for which she needed an accommodation was related to pregnancy, and no accommodations were available to people whose inability to work was based on this condition.
When Young filed her claim in federal court, employers’ denial of pregnant workers’ accommodation requests under the PDA had been repeatedly upheld by federal circuit courts in a series of rulings that narrowly construed the class to which a pregnant worker should be compared in determining whether they were “similar in their ability or inability to work.”
In 1998, 1999 and 2006, in cases involving pregnant workers’ challenges to a discharge or forced leave after their employers failed to accommodate a “lifting restriction,” the Fifth, Eleventh and Sixth circuits, respectively, declined to find a violation of the PDA where the employers’ policies were facially neutral: Accommodations were allowed only to workers injured on the job – because the plaintiffs were pregnant and not injured on the job, they were not eligible for an accommodation.6 Young’s case was no different; the federal district court granted UPS’s motion for summary judgment.
Any hopes Young had for better luck on appeal to the circuit court were dashed when the Fourth Circuit decided her case in January 2013. The Fourth Circuit joined the “no accommodation required” roster: The court found Young was not similar to other employees who were granted accommodations. The refusal to grant her an accommodation failed to give rise to an inference of unlawful discrimination. The district court’s judgment was affirmed.7
However, the facts of Young’s case were distinguishable: Unlike the employers in the earlier cases, UPS didn’t limit its accommodations to one class of worker – it provided accommodations to workers injured on the job, workers who were “disabled” under the pre-2008 amendment version of the Americans with Disabilities Act, and to workers who were unable to drive because they had lost their Department of Transportation certifications, even where their licenses were revoked due to drunk driving convictions. But, UPS did not provide accommodations to women due to pregnancy.8
The question of what should be compared – the work limitations requiring an accommodation or the classes of workers to whom accommodations were granted – became the focus of Young’s case at the Supreme Court.
In her petition for certiorari, Young argued the focus should not be on whether a pregnant worker falls into the same class as other workers who are allowed accommodations, but on whether the accommodation she seeks is granted to employees who are similar in their “ability or inability” to work. The comparison should not be to a group of workers, Young argued, but to the need for an accommodation. In her brief she argued if an employer accommodates a subset of workers with disabling conditions, “pregnant workers who are similar in the ability to work [must] receive the same treatment even if still other non-pregnant workers do not receive accommodations.”9
UPS argued that courts need only “compare the accommodations an employer provides to pregnant women with the accommodations it provides to others within a facially neutral category (such as those with off-the-job injuries) to determine whether the employer has violated Title VII.”10
The Supreme Court, in a 6-3 decision released in March 2015, did not buy either argument. Justice Breyer, writing for the majority, stated Young’s argument would give pregnant workers “most-favored nation” status. If an employer provided any employees with an accommodation, it would have to provide similar accommodations “to all pregnant workers (with comparable physical limitations), irrespective of the nature of their jobs, the employer’s need to keep them working, their ages, or any other criteria.”11 The position espoused by UPS was equally problematic, the majority said, allowing employers to exclude pregnancy – a condition that obviously only affects women – from a category of conditions requiring accommodation and effectively “treat[ing] pregnancy less favorably than diseases or disabilities resulting in similar inability to work.”12 The purpose of the PDA’s second clause, which was to overrule the Supreme Court’s decision in Gilbert, would be stymied. Under UPS’s reasoning, clearly discriminatory policies like those in Gilbert, that included everyone except pregnant women, would wrongfully pass muster under Title VII as long as they were facially neutral.
The Court also rejected the view expressed by the EEOC in its 2014 guidelines, designed to clarify the meaning of the PDA’s second clause. According to these guidelines, 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).”13 Although courts are encouraged to defer to the “body of experience and informed judgment” expressed in the rulings, interpretations and opinions of an agency charged with enforcing a particular statute,14 the Supreme Court found the timing of the EEOC’s post-certiorari revision of its guidelines suspect, and its recommendations inconsistent with the government’s prior position on the issue.
Having rejected the alternative interpretations presented to it, the Court took a middle ground, adopting the framework for establishing a prima facie case of disparate treatment discrimination espoused in McDonnel Douglas Corp. v. Green15 and applied this analysis to claims brought by individual pregnant workers.16 Under this framework, a plaintiff can establish a prima facie case alleging that the denial of an “accommodation constituted disparate treatment under the Pregnancy Discrimination Act’s second clause” by showing 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.’”17
Once the plaintiff has made this case,18 the Court held, the burden shifts to the employer to justify its refusal to accommodate the plaintiff by presenting “legitimate, nondiscriminatory” reasons for its denial. These reasons, the Court cautioned, “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.”19 If the employer is able to present these nondiscriminatory reasons for its actions, the plaintiff can still raise an inference of discrimination and survive a motion for summary judgment by showing that the employer’s reasons are pretextual. The Court described what could constitute evidence of pretext:
“We believe that the plaintiff may reach a jury on this issue by providing sufficient evidence that the employer’s policies impose a significant burden on pregnant workers, and that the employer’s “legitimate, nondiscriminatory” 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.
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 non-pregnant 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 non-pregnant employees with lifting limitations while categorically failing to accommodate pregnant employees with lifting limitations.”20
The Court homed in on the fact UPS had multiple policies to accommodate non-pregnant employees with lifting restrictions, but none for pregnant employees with lifting restrictions. This, the Court said, suggested UPS’s reasons for failing to accommodate pregnant employees might not be “sufficiently strong,” allowing a jury to find an inference of intentional discrimination.21
Young’s case was remanded to the Fourth Circuit to allow it to consider the strength of UPS’s justifications for denying lifting accommodations to pregnant workers under the new framework: “That is, why, when the employer accommodated so many, could it not accommodate pregnant women as well?”22
The merits of the case were never reached: In October 2015 Young and UPS reached a confidential settlement agreement. A factor in the decision to settle was UPS’s implementation of a pregnancy accommodation policy in January 2015.23
The Supreme Court’s ruling was greeted by some as a big win for women,24 but other commentators saw trouble ahead. “This was a clear victory for Peggy Young,” wrote two legal analysts, “but it invites more litigation in pregnancy discrimination cases, as the standard is far from clear or categorical.”25 A law review article said the initial clarity of the Supreme Court’s decisional framework became less certain on review, eventually fading “into a vague and potentially subjective application.”26
The analysts were proved right. Recent decisions differ on the issue of who the comparator should be under the second clause of the PDA. In Martin v. Winn-Dixie Louisiana, Inc.,27 the district court for Louisiana’s Eastern District used as comparators two pregnant employees who had been granted accommodations (and found for the plaintiff, who had been denied an accommodation). In complete contradiction, the District Court for the Northern Division of Alabama, citing the Seventh Circuit, found a plaintiff had failed to meet the fourth element of a prima facie case – that the employer “gave more favorable treatment to any similarly situated employee” – where the single comparator was also a member of the protected class; that is, she was also pregnant. The plaintiff there claimed the city had provided light duty to a pregnant supervisor but had discriminated against plaintiff when it refused to provide her light work under similar circumstances. The district court, quoting the Seventh Circuit, said ‘“[W]e cannot infer pregnancy discrimination on [the basis of the employer’s treatment of other pregnant employees] because there is no comparison between the treatment of pregnant employees versus non-pregnant employees. The purpose of the ‘similarly-situated’ comparator is to ensure that all other variables are discounted so that discrimination can be inferred.’”28
The Second Circuit in Legg v. Ulster County29 found sufficient evidence of disparate treatment where the employer denied a corrections officer’s accommodation request based on a pregnancy-related restriction, but allowed accommodations for on-the-job injuries. However, the court there accepted the employer’s reasons for denying the request – New York law required municipalities to continue to pay corrections officers injured on the job but did not require the same for employees who became unable to work for other reasons – as a legitimate justification for the disparity. A finding in the plaintiff’s favor was required only because there was evidence, in the numerous contradictory explanations given by the employer, that this legitimate justification was pretextual. If these inconsistencies and contradictions had not existed, the court likely would have ruled against the plaintiff.
A facially neutral justification for disparate treatment was also enough for the Iowa Supreme Court to find a plaintiff’s case legally insufficient. In McQuiston v. City of Clinton30 the Iowa Court paid lip service to Young but instead followed the reasoning of the earlier decisions of the Fifth, Sixth and Eleventh circuits – which had been implicitly repudiated by the Supreme Court – and held the city’s denial of an accommodation to a pregnant worker was justified where the city allowed accommodations only to employees injured on the job, and where the employer’s policy was “rationally related to legitimate purpose of minimizing workers’ compensation benefits.”
None of the cases addressed the question of whether the lack of accommodation imposed a “significant burden” on the pregnant employee. The definition of “significant burden” remains murky.
In June 2015, three months after Young was decided, the EEOC issued revised guidelines for determining when the denial of a pregnancy-related request for accommodation is discriminatory.31 The new guidelines follow the Young decision, but, in a sentence that follows an example provided to illustrate what might constitute a case of disparate impact, the EEOC goes beyond the Supreme Court’s decision: A “[facially neutral] policy may also be challenged on the ground that it impermissibly distinguishes between pregnant and non-pregnant workers who are similar in their ability or inability to work based on the cause of their limitations.”32 This view, which mirrors the government’s rejected argument to the Supreme Court, would be good news for pregnant women. The comparison, the EEOC says, should look at the kind of accommodation that is required, based on the worker’s limitations, and not the cause of the limitation. Accommodation requests for light duty based on an inability to lift 10 pounds, for example, should be treated the same, whether the cause of the worker’s inability is the result of license revocation after a drunk driving conviction, an on-the-job accident or pregnancy.
In its guidelines, the EEOC discusses another avenue a pregnant worker with a pregnancy restriction may pursue: the Americans with Disabilities Act.33 An expansive amendment to the Americans with Disabilities Act in 2008 includes many health issues associated with pregnancy – many of which may result in restrictions on walking, standing, or lifting – as temporary disabilities or impairments for which a reasonable accommodation is required.
Although the Supreme Court’s decision in Young v. UPS did not clearly resolve to whom pregnant workers should be compared when determining whether they are “similar in their ability or inability to work,” it is clear that the larger the group and the broader the class of those who receive accommodations, the more likely it is that failure to give such accommodations to pregnant women will be viewed as discrimination – no matter how neutrally the justifications for the disparity are phrased.
Employers wishing to avoid a lawsuit would do well to take the EEOC’s advice and, among other steps, provide regular training about employee rights and responsibilities related to pregnancy; document all employment decisions and any employee issues and go over these documents with the employee, as possible; and “[e]nsure light duty policies are structured so as to provide pregnant employees access to light duty equal to that provided to people with similar limitations on their ability to work … [t]emporarily reassign[ing] job duties that employees are unable to perform because of pregnancy or related medical conditions.”34
Laura Bradshaw Tucker is an associate at Gwinn Tauriainen PLLC in Troy, a firm with a practice concentration in employment law, business litigation, and probate and estate planning. Ms. Bradshaw Tucker is a member of the Employment Law Committee of the OCBA. She is a graduate of the University of Michigan Law School.