Supreme Court "clarifies" (a/k/a creates) obligations of employers to accommodate work restrictions of pregnant employees

Russ Samson, Iowa Employment & Labor Law, Dickinson Law Firm, Des Moines Iowa, Iowa Construction Law

Posted on 04/29/2015 at 01:15 PM by Russell Samson

The March 25, 2015 decision of the United States Supreme Court in Young v. United Parcel Service, Inc. answered a question that had been smoldering since the 1978 amendment to the definition section of Title VII. Q: Must employers accommodate work restrictions imposed due to an employee's pregnancy? A: Yes, and a new articulation of the McDonnell Douglas analytical framework has been provided for guidance. As amended by the Pregnancy Discrimination Act in 1978, 42 USC § 2000e(k) of Title VII provides in part: (k)   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; and women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes, including receipt of benefits under fringe benefit programs, as other persons not so affected but similar in their ability or inability to work, . . .[boldface emphasis added] There are clearly two different provisions in the definition. The first provision is the definition. Young v. UPS concerned the second provision, which goes beyond a definition to impose duties on employers.

Background of the Litigation

Under the collective bargaining agreement with the Teamsters which covered the bulk of UPS's workforce, UPS made three promises which were identified as relevant to the litigation. First, UPS promised to make a good faith effort to comply with requests for reasonable accommodation for employees with permanent disability under the ADA. Second, UPS promised to give “inside” jobs to drivers (covered by the contract) who had lost their DOT certification because they had failed a medical examination, or had lost their driver’s license, or had been involved in a motor vehicle accident. And third, UPS was contractually obligated to provide a temporary alternative work assignment to employees who were unable to perform their normal work assignments due to an on-the-job injury.” Young was a part-time driver for UPS – picking up and delivering packages. UPS drivers were required to be able to lift parcels weighing up to 70 pounds. Young had a history of miscarriages. In 2006 she became pregnant again. Her doctor instructed that she not lift more than 20 pounds during the first 20 weeks of pregnancy, and not lift more than 10 pounds for the remainder of the pregnancy. When Young informed UPS of the restrictions, UPS apparently gave her an unpaid leave of absence – and after a period of time, she apparently lost her employee medical coverage. Young’s suit against UPS was for denial of an accommodation for her pregnancy. She contended that if UPS made temporary work assignments for non-pregnant employees who had restrictions similar to hers, then UPS was required by the PDA to keep her actively employed and to provide her with temporary work tasks consistent with restrictions imposed because of her pregnancy. The District Court granted summary judgment to UPS, concluding that Young could not make out a prima facie case of discrimination under the McDonnell Douglas burden shifting framework. Specifically, the district court concluded that UPS employees who had temporary disabilities flowing from on-the-job injuries, or who had lost DOT certifications, or those “disabled” under the ADA were not “similarly situated comparators” to Young. The Fourth Circuit affirmed.

Supreme Court's Divisions

A majority of five of the Supreme Court justices disagreed with the lower courts’ rationale. Justice Alito concurred with the majority’s result, but did not agree with its rationale. Three justices dissented in two separately-written opinions. While the concurring and two dissenting opinions are interesting and instructive, we look to the majority opinion for guidance as to how claims of pregnancy discrimination under federal law are to be handled in the future.

PDA Prima Facie Case

In Young, the majority of the Supreme Court determined more precisely what obligations the second part of 42 USC § 2000e(k) -- “shall be treated the same” – imposed on employers, and by extension, what a female claiming unlawful discrimination under the PDA needs to prove. While an “individual pregnant worker” seeking to show disparate treatment under the “shall be treated the same” clause of the PDA, still must establish a prima facie case of unlawful discrimination, the traditional elements of such a prima facie case are changed in a “shall be treated the same” pregnancy discrimination case... No longer is the plaintiff “require[d] to show that those whom the employer favored and those whom the employer disfavored were similar in all but the protected ways.” Rather, the majority articulated the plaintiff’s prima facie burden in a pregnancy accommodation case this way: . . .  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. One must wonder who might be within the class of “similar in their ability or inability to work?”  Justice Alito, in his separate opinion concurring in the result, offered a thought -- “I interpret the second clause to mean that pregnant employees must be compared with employees performing the same or very similar jobs.” No other justice agreed with Alito’s notion. As discussed below, it appears that what is to be compared are the restrictions, and only the restrictions.

PDA Burden Shift to Employer

According to the majority in Young, once a prima facie violation of the second clause of the PDA is established, “The employer may then seek to justify its refusal to accommodate the plaintiff by relying on ‘legitimate, nondiscriminatory’ reasons for denying her accommodation.”  The language is quoted for a reason:  Compare that language to the standard generally applied in Title VII cases: To dispel the adverse inference from a prima facie showing under McDonnell Douglas, the employer need only "articulate some legitimate, nondiscriminatory reason for the employee's rejection." McDonnell Douglas Corp. v. Green, 411 U. S., at 802. Beyond the difference in language, the majority continued its deviation from “standard Title VII law” by stating that the employer’s non-discriminatory reason in a second-clause PDA claim “normally 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.” That sounds a bit like the standard applied for undue hardship for reasonable accommodation claims under the Americans with Disabilities Act. In any case, the Young majority has placed some barriers to the reasons an employer can give to fulfill its burden of production in these pregnancy cases.

PDA Pretext

Assuming an employer gets over the hurdle of offering a legitimate, nondiscriminatory reason for its failure to accommodate a pregnant employee, the majority noted that a plaintiff may show that, “the employer’s proffered reasons are in fact pretextual.” The majority articulated the elements of pretext for a pregnancy accommodation claim as follows: We believe that the plaintiff may reach a jury on this issue by providing sufficient evidence that [1] the employer’s policies impose a significant burden on pregnant workers, and [2] that the employer’s ‘legitimate, nondiscriminatory’ reasons are not sufficiently strong to justify the burden, [3] but rather—when considered along with the burden imposed—give rise to an inference of intentional discrimination. The “significant burden” prong of this new pretext requirement can be met, “. . .by providing evidence that the employer accommodates a large percentage of non-pregnant workers while failing to accommodate a large percentage of pregnant workers.” The language used by the Supreme Court majority opinion suggests to me, as noted above, that the comparison employers must make to determine whether denial of an accommodation may violate the PDA -- when the accommodation is the same -- is whether the employee is pregnant or not, and nothing else.   Clearly the employer is not to consider whether to make accommodations based on the source of the condition that gave rise to the temporary restriction(s). While we now have an answer, we are left with a large number of questions.

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