Client Bulletin #553
A divided U.S. Supreme Court decided last week that employers covered by the Pregnancy Discrimination Act (part of Title VII) may be required to make reasonable accommodations for work restrictions caused by pregnancy and related conditions.
The majority opinion in Young v. United Parcel Service says that failure to make pregnancy accommodations may be a form of unlawful sex discrimination. Unfortunately, the Court’s failure to articulate a clear standard may be maddening to any employer who seeks to comply with the law without becoming a “test case.”
What the case was about
Peggy Young was an air package delivery driver for UPS, working out of Alexandria, Virginia. Her job required her to regularly lift packages weighing as much as 70 pounds, and to move packages weighing up to 150 pounds with assistance. After suffering several miscarriages, Ms. Young became pregnant, and she was placed on a 20-pound lifting restriction, which was later changed to a 10-pound restriction. UPS did not terminate her employment, but it did require her to go on an unpaid medical leave of absence and did not offer accommodations that would have allowed her to continue working.
Ms. Young and her co-workers were subject to a collective bargaining agreement, which provided for reasonable accommodations for (1) disabilities within the meaning of the Americans with Disabilities Act, (2) on-the-job injuries, and (3) employees who were unable to drive because they had lost their certifications under U.S. Department of Transportation regulations.
Ms. Young sued in federal court, alleging pregnancy discrimination among other claims. The pregnancy issue was the only one reviewed by the Supreme Court.
The Pregnancy Discrimination Act, which took effect in 1979, amended Title VII’s sex discrimination provisions to include pregnancy, childbirth, and related conditions. It states as follows:
[W]omen 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 . . ..
In 1979, the Americans with Disabilities Act, with its requirement that employers make reasonable accommodations for disabilities, was still in the future (the ADA was enacted in 1990 and did not first take effect until 1992), so at the time that the PDA was enacted, Congress was presumably focused on preventing differential treatment of pregnant women – including refusals to hire or promote, or forcing women to resign when they became pregnant or gave birth.
Over the years, most courts have interpreted the PDA to require that pregnant employees be treated the same as any other employee with a temporary, non-work-related disability. If an employer made “accommodations” for such conditions, then it would have been required to do the same for a pregnant employee who needed accommodation. But employers were generally not required to treat pregnancy the same way they treated ADA disabilities, or work-related injuries or illnesses.
More recently, there has been growing support for requiring employers to make reasonable accommodations for pregnancy-related conditions, just as they would for employees with disabilities. A number of state and local governments have enacted “pregnancy accommodation” laws, but the U.S. Congress has not. Nor has the state of Virginia.
A federal court in Virginia granted summary judgment to UPS, and the U.S. Court of Appeals for the Fourth Circuit – which hears appeals from federal courts in Maryland, North Carolina, South Carolina, Virginia, and West Virginia – affirmed. According to the Fourth Circuit, neither employees with ADA disabilities, nor employees with work-related injuries, nor employees with DOT restrictions, were similarly situated to employees who had pregnancy-related work restrictions. Thus, the Fourth Circuit held, UPS did not “discriminate” against Ms. Young by requiring her to go out on unpaid leave. Ms. Young sought review by the Supreme Court, who agreed to hear the case, and oral argument was held in December 2014.
The Supreme Court decision
The Supreme Court vacated the Fourth Circuit decision and sent the case back for resolution in accordance with the Supreme Court decision. The majority opinion was written by Justice Stephen Breyer, joined by Chief Justice John Roberts, and Justices Ruth Bader Ginsburg, Elena Kagan, and Sonya Sotomayor. Justice Samuel Alito wrote a separate opinion concurring in the judgment. Justice Antonin Scalia, joined by Justices Anthony Kennedy and Clarence Thomas, dissented. Justice Kennedy also wrote a separate dissent, for the most part stressing that he did not philosophically oppose the idea of workplace accommodation of pregnancy.
Ms. Young had argued that, if an employer accommodated any subset of workers, then it should be required to accommodate pregnant workers with similar limitations. The majority rejected this argument, saying that it granted pregnant women “most-favored nation status,” which was not authorized under the PDA.
The majority also declined to apply the EEOC’s new Enforcement Guidance on Pregnancy Discrimination and Related Issues, which among other things takes the position that an employer must accommodate pregnancy if it accommodates employees with disabilities and must provide light duty for pregnant employees if it does so for employees with workplace injuries and illnesses. However, it was not clear that the majority actually disagreed with the EEOC’s position. Instead, the majority seemed to primarily object to the fact that the EEOC’s Enforcement Guidance represented a dramatic change in the agency’s prior position on pregnancy discrimination and that there was no explanation for the change. (The majority also did not seem to care for the fact that the EEOC issued the Enforcement Guidance after the Supreme Court had already agreed to hear the Young case.)
On the other hand, the majority rejected as too narrow UPS’s argument that the PDA did nothing more than add “pregnancy, childbirth, and related conditions” to the definition of “sex discrimination” prohibited by Title VII.
The Court majority said that a woman claiming discrimination based on failure to accommodate pregnancy would be required to establish the following:
- that she was a member of the “protected class” (that is, pregnant, or having a pregnancy-related condition)
- that she sought a reasonable accommodation
- that the employer did not accommodate her
- AND that the employer did accommodate others “similar in their ability or inability to work.”
As an example, presumably an employee with a 20-pound lifting restriction because of degenerative disc disease (arguably a “disability” within the meaning of the ADA) would be “similar in his ability or inability to work” to a pregnant employee with a 20-pound lifting restriction.
The expense or inconvenience of accommodating a pregnant employee is not a “legitimate, non-discriminatory” reason for treating the pregnant employee differently.
If the employee could make out this prima facie case, the employer could articulate a legitimate, non-discriminatory reason for treating the pregnant employee differently. The majority gave virtually no guidance here, but again, using the example of the co-worker with degenerative disc disease, perhaps the employer could argue that the employees were treated differently because the ADA mandated accommodation in the case of the employee with a chronic back condition. The employer might also be able to argue that the conditions were different because the back condition would last indefinitely and might even worsen over time, while the pregnancy-related condition would presumably be resolved in a few months. The Court majority did say that the expense or inconvenience of accommodating pregnant employees was not a legitimate, non-discriminatory reason for a distinction.
Finally, the majority said that if the employer met its burden, the employee could nonetheless prevail by showing that the employer’s explanation was a “pretext” for discrimination. This is where the Court’s decision became particularly maddening for its lack of concrete guidance and somewhat circular reasoning: according to the Court, pretext can be shown if (1) the policy imposes a significant burden on pregnant workers, and (2) the employer’s legitimate, non-discriminatory reasons are not strong enough to justify the burden.
Among other things, the Court majority said, an employee could show pretext by presenting evidence that the employer accommodated a large percentage of non-pregnant workers while accommodating a relatively small percentage of pregnant workers. Or an employee could show that the employer has multiple policies about accommodations for non-pregnant workers while having no pregnancy accommodation policies.
Justice Alito, in his separate concurrence, indicated that an employer might be able to make distinctions among employees based on the “reason” for the restriction. He gave the example of an employer who might make accommodations for employees who had become restricted based on heroic conduct, such as military service. He also indicated that employers should be allowed to treat employees with ADA disabilities or on-the-job injuries or illnesses differently from pregnant employees. (The EEOC took exactly the opposite approach in its Enforcement Guidance, calling these types of distinctions unlawful “source discrimination.”)
Although the majority criticized the EEOC’s Enforcement Guidance on Pregnancy Discrimination, it is questionable whether the Supreme Court’s decision will deter the EEOC from continuing with its strongly pro-accommodation stance.
However, Justice Alito agreed with the majority that there was no meaningful distinction between UPS’s “DOT-restricted” employees and pregnant employees.
The Court sent the case back to the Fourth Circuit for a determination as to whether UPS’s policy was a pretext for pregnancy discrimination.
Justice Scalia wrote a scathing dissent, accusing the majority of “craft[ing] . . . a new law that is splendidly unconnected with the text and even the legislative history of the [PDA].” He accused the majority of applying a “disparate impact” standard in a disparate treatment case. (In a disparate impact case, the plaintiff argues that a facially neutral, non-discriminatory policy has a discriminatory effect because it adversely affects one group more than others.)
What does it all mean?
Most employers probably would have preferred either the old rule that pregnancy should be treated the same as any other temporary, non-work-related disability (which admittedly had a harsh effect on some pregnant workers), or a rule that required employers to make reasonable accommodations for pregnancy-related restrictions, period, which at least had the benefit of clarity.
Instead, the majority’s vague standard will probably not be clarified for years, until post-Young pregnancy cases begin working their way through the lower courts.
It is also questionable whether the Court’s decision will deter the EEOC from continuing to take its current aggressive, pro-accommodation stance: the agency may remedy the deficiencies noted in its Enforcement Guidance by simply adding a paragraph explaining the reason for its change in position on pregnancy accommodation and acknowledging the Young decision, saying that Young supports the EEOC’s new stance.
That having been said, a few principles may be gleaned from the decision:
*Employers in states or localities that already have pregnancy-accommodation laws should comply with their state or local laws. More protections may be available to employees under state or local laws than under federal law. If so, compliance with state or local law should also result in compliance with federal law.
According to a January 2015 article published on the Pew Charitable Trust website, the following states currently have pregnancy accommodation laws: Alaska, California, Connecticut, Delaware, the District of Columbia, Hawaii, Illinois, Louisiana, Maryland, Minnesota, New Jersey, Texas (government employees only), and West Virginia. In addition, New York City, Philadelphia, and Central Falls and Providence, Rhode Island, have municipal laws requiring pregnancy accommodation. The states of Georgia, Massachusetts, New York, North Carolina, Pennsylvania, Rhode Island, and Wisconsin will be considering such legislation this year.
*Employers who are not governed by state or local pregnancy-accommodation laws . . .
*. . . may be able to continue treating employees with ADA-covered disabilities and work-related conditions more favorably than they do pregnant employees, based on Justice Alito’s concurring opinion. However, they should be aware that the EEOC has taken the opposite position, and it is not clear that the rest of the majority agreed with Justice Alito on this point, either. Therefore, this approach involves some legal risk.
*. . . should accommodate pregnancy or related conditions if the employers make accommodations for any class of employees other than ADA-disabled employees or employees with work-related conditions.
*. . . should consider taking a low-risk course and complying with the EEOC’s Enforcement Guidance, on the chance that the EEOC will simply “re-adopt” its position with minor updates.
Employers should review their accommodation policies and practices in light of the Young decision and adapt as necessary. If you need assistance with your review, please contact any member of Constangy’s Litigation Practice Group, or the Constangy attorney of your choice.
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