A Novel, and Possibly Moot, Approach To Pregnancy Discrimination Claims

Last week’s decision by the Supreme Court in Young v. UPS interpreted a provision of the Pregnancy Discrimination Act that had caused division in the lower courts. The Pregnancy Discrimination Act was originally passed in 1978 in response to a widely derided Supreme Court decision, Gilbert v. General Electric, which held that a company’s decision to exclude pregnancy as a condition for which it provided benefits was not sex discrimination in violation of Title VII.

In response to Gilbert, Congress passed the Pregnancy Discrimination Act. The Act explicitly defines discrimination based on pregnancy to be the same as discrimination based on sex. It then says:

…and 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.

The Court’s decision last week was the first time it addressed this language as it related to an employer’s obligation to grant accommodations for pregnant workers.

Peggy Young was a UPS driver who sued the Company after it failed to give her an alternative assignment during her pregnancy to accommodate her inability to lift packages as heavy as 70 pounds, the weight UPS requires its drivers to lift.   Young alleged that UPS gave such assignments as accommodations to other workers. These included workers who were injured on the job, workers whose Department of Transportation certification had been revoked, and workers with disabilities under the Americans with Disabilities Act.

Young argued that the relevant language of the Pregnancy Discrimination Act required employers to give pregnant workers any accommodation that it gave to any other subset of workers, even if it did not give such an accommodation to all other workers. UPS argued that the language solely clarified and reinforced the prior clause in the Act, stating that discrimination based on pregnancy is discrimination based on sex.

The Court stated that Young’s reading was overinclusive, and that UPS’s reading rendered a large section of the statute superfluous. While the court’s majority ruled for Young, the majority opinion offered its own interpretation, relying on its prior cases which have directed lower courts how to evaluate disparate treatment claims in discrimination cases.

The Court’s opinion applies a burden shifting framework to cases where an employer has failed to accommodate a pregnant employee. The employee denied such an accommodation first has the burden to show that the employer has granted that accommodation to a sizable category of other employees. The employer must then articulate its legitimate, nondiscriminatory reason for its refusal to accommodate (other than cost or inconvenience). Once it does so, the employee may prove that the employer’s actions are pretextual by either direct or circumstantial evidence. Circumstantial evidence can include demonstrating that the employer’s actions impose a significant burden on pregnant workers, and that the employer’s proffered reasons are not strong enough to justify the burden. To do so, the employee may introduce evidence that the employer’s practices accommodate large numbers of non-pregnant employees, while excluding large numbers of employees.

In doing so, the Court referred to its seminal decision in McDonnell Douglas Corp. v. Green. That case established a similar burden shifting formula in the context of proving claims of intentional discrimination. Like the Court’s opinion in McDonnell Douglas, the majority opinion in Young recognizes that circumstantial evidence addressing the effects of a company policy can be used to prove discriminatory intent. Note that this is not the same as a disparate impact claim under Title VII, where an employee may prevail by showing that an employer’s policy has discriminatory effects even if it is neutral in intent. Rather, the Young majority explicitly applied its rationale to disparate treatment claims, holding that evidence of disparity can be evidence of intentional discrimination.

Although the Court’s decision begs for further development, the Court itself noted that its opinion may have already been superseded by other law. Specifically, in 2008, Congress passed the Americans With Disabilities Act Amendments Act. That law significantly expanded the definition of disability that will likely cover many pregnant women. Although pregnancy is not a disability per se under the ADAAA, the various conditions that lead pregnant women to seek accommodation are likely to be found disabilities, even if those conditions are limited to the duration of the woman’s pregnancy. In fact, although the United States Solicitor General supported Ms. Young’s position in this case, it initially asked the Court to deny review of the case because it believed that the ADAAA would often require such accommodations, regardless of how the Court interpreted the Pregnancy Discrimination Act.

For workers (and employment law practitioners) in New York City, the issue may often be even more theoretical, because New York City’s Human Rights Law was amended in 2014 by the Pregnant Workers Fairness Act. That law explicitly requires employers to offer accommodations to pregnant employees so they may continue to work without endangering their health.

It took the Court 37 years after the passage of the Pregnancy Discrimination Act to explain how to apply one of the law’s key clauses. Despite the many unanswered questions that arise from that decision, it may already be moot due to developments in other laws protecting pregnant workers.