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  • October 07, 2015

    Employment Law: Young Presents New Test under the Pregnancy Discrimination Act

    A recent U.S. Supreme Court decision creates a new test for analyzing disparate treatment claims under the federal Pregnancy Discrimination Act. Attorney Jill Hartley explains.

    Jill M. Hartley

    Pregnant woman at workOct. 7, 2015 – The U.S. Supreme Court recently created a new test for analyzing disparate treatment claims by employees against employers under the federal Pregnancy Discrimination Act (PDA), which prohibits sex discrimination on the basis of pregnancy.

    But whether the high court's decision in Young v. UPS, 135 S. Ct. 1338 (2015), resolves the disagreement among courts over analysis of disparate treatment claims that have been at the forefront of PDA litigation the last decade remains to be seen.

    The Pregnancy Discrimination Act

    Almost 40 years ago, Congress amended Title VII of the Civil Rights Act of 1964 to clarify that the Act’s prohibition against sex discrimination extends to discrimination on the basis of pregnancy, childbirth, and related medical conditions.

    The PDA prohibits pregnancy discrimination in that it requires that all women affected by pregnancy, childbirth, and other related medical conditions be treated the same “as other persons not so affected but similar in their ability or inability to work.”1

    The PDA applies to employers with 15 or more employees. However, Wisconsin’s Fair Employment Act (WFEA) covers all employers in Wisconsin, and courts may look to interpretations of the PDA in determining whether discrimination has occurred.2

    In 2014, the U.S. Equal Employment Opportunity Commission (EEOC) received 3,400 pregnancy discrimination complaints, slightly down from previous years. More than 20 percent resulted in outcomes favorable to the party alleging discrimination, resulting in $14.4 million in recoveries against employers.3

    In almost 60 percent of cases, though, the EEOC did not find reasonable cause to believe that discrimination occurred. Regardless of whether or not the EEOC pursues a case, a charging party still has a private right of action to pursue discrimination claims.

    Thus, the latest decision in Young impacts how federal and state courts will examine pregnancy discrimination claims, regardless of EEOC determinations.

    The Young Case

    Peggy Young worked as a part-time driver for United Parcel Service (UPS). During her pregnancy, Young’s doctor imposed lifting restrictions. Young requested a light-duty assignment, but UPS refused despite its policy of accommodating employees who could no longer perform their job on the ground that Young did not fall within any of the categories contained in the policy.

    UPS’s policy specifically provided light-duty opportunities for employees who: 1) had become disabled on the job; 2) had lost their Department of Transportation certification; or 3) suffered from a disability covered by the Americans With Disabilities Act (ADA).

    Young subsequently brought a lawsuit claiming disparate treatment under the PDA, arguing that UPS violated the PDA when it accommodated other employees. Young’s suit alleged that UPS’s refusal to accommodate her pregnancy-related work restrictions in the face of accommodations granted to nonpregnant, similarly restricted employees constituted disparate treatment.

    A federal district court ruled against Young, finding that her claim failed to prove that UPS intentionally discriminated against her, and rejected her argument that she was similarly situated to those employees entitled to an accommodation under UPS’s policy. The U.S. Court of Appeals for the Fourth Circuit affirmed, concluding that UPS had crafted a “pregnancy-blind policy” that did not exclude only pregnancy.4 The Fourth Circuit likewise rejected Young’s comparison of herself to those categories of employees accommodated under the company’s policy.

    In a 6-3 decision, the U.S. Supreme Court reversed, creating a new test for analyzing disparate treatment claims that allege less favorable treatment for pregnant employees as compared to nonpregnant employees under the PDA.

    The Supreme Court’s Decision

    Young argued for an interpretation of the PDA that would obligate employers to provide the same accommodations for pregnancy-related workplace disabilities as non-pregnancy related workplace disabilities that similarly impact an employee’s ability to work. Under Young’s theory, an employer violates the PDA if it does not accommodate a pregnant worker similar in her “ability to work” as other workers with disabling conditions who receive accommodations. However, the Court rejected Young’s approach, calling it an unwarranted status for pregnant workers.

    UPS argued for a much more restrictive interpretation of the PDA. The company sought a ruling that courts need only compare accommodations provided to pregnant women with accommodations provided to others within a facially neutral category (such as off-the-job injuries) to determine whether a violation occurred. 

    Jill HartleyJill Hartley (Drake 1996) is a shareholder with The Previant Law Firm, S.C., Milwaukee, where she exclusively represents labor unions and employees in labor and employment matters. Reach her by email or by phone at (414) 223-0428.

    In other words, UPS argued that as long as its accommodation policy was pregnancy-neutral, it could treat pregnant workers like all other employees. The Court also rejected UPS’ approach.

    Justice Stephen Breyer, writing for the 6-3 majority, instead laid out a new test for analyzing disparate treatment claims using the traditional framework in, McDonnell Douglas Corp. v. Green,5 and consistent with longstanding analysis under Title VII.

    The McDonnell Douglas test is used to show that disparate treatment in accommodation gives rise to an inference of intentional discrimination.

    Under this test, a plaintiff alleging disparate treatment in accommodation “may make out a prima facie case 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.’”6

    Once the employee makes a prima facie showing, the burden shifts to the employer to offer a legitimate, non-discriminatory reason for the difference in treatment.

    The Young Court provides specific examples of “reasons” that will not satisfy the employer’s burden. For instance, an employer claiming it is more expensive or less convenient to provide accommodations to a pregnant employee will be insufficient to justify the decision. An employer’s reasons are then subject to challenge by the pregnant employee to demonstrate pretext.

    The Young Court wrote that the plaintiff may meet this burden with evidence that the employer’s policy imposes a significant burden on pregnant workers and its articulated reasons for the policy are not sufficiently strong. 

    The Court did not identify “reasons” that will meet the employer’s burden, nor did the Court rule on the legitimacy of the UPS policy. Instead, the Court remanded the case to the Fourth Circuit to determine whether UPS could justify its policy. As to the particular facts in Young, the Court suggested that intentional discrimination may be inferred.

    “Here, for example, if the facts are as Young says they are, she can show that UPS accommodates most nonpregnant employees with lifting limitations while categorically failing to accommodate pregnant employees with lifting limitations,” Justice Breyer wrote.

    The Court further noted that UPS’s multiple policies accommodating nonpregnant employees with lifting restrictions “suggests that its reasons for failing to accommodate pregnant employees with lifting restrictions are not sufficiently strong. …”

    Conclusion

    The Court’s ruling was a victory for Young, but only time will tell how the standard outlined by Justice Breyer will impact accommodations for pregnant workers or litigation over disparate treatment claims. At its heart, however, the ruling signals to employers that accommodating some disabilities requires the same accommodations for pregnant employees with similar limitations.

    Finally, the Young decision may be limited by 2008 amendments to the ADA, which expanded the definition of a disability to encompass temporary conditions. The EEOC has interpreted the amendments to cover pregnancy-related impairments that result in workplace restrictions.

    Endnotes

    1 42 U.S.C. § 2000e(k).

    2 Anderson v. State of. Wis. Labor and Industry Review Commission, 330 N.W.2d 594, 598 (Wis. 1983) (“[I]t is appropriate to consider federal decisions under Title VII of the federal Civil Rights Act … for guidance in interpreting and applying the Wisconsin Fair Employment Act.”).

    3 U.S. Equal Employment Opportunity Commission, Pregnancy Discrimination Charges (FY 2010 – FY 2014).

    4 Young v. UPS, 784 F. 3d 192, 201 (4th Cir. 2013).

    5 McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).

    6 Young at 1354.


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