By: Vanessa A. Gonzalez*
On March 25, 2015, the United States Supreme Court decided a case that will affect employers and pregnancy discrimination claims across the country by making it easier for an employee to reach the jury, thus increasing the potential cost of defense to employers.
Pregnancy Discrimination Act
In 1978, Congress enacted the Pregnancy Discrimination Act (PDA) which amended Title VII of the Civil Rights Act of 1964 (Title VII). Among other things, Title VII prohibits sex discrimination in the workplace. The PDA of 1978 specifies that Title VII’s prohibition against sex discrimination applies to discrimination because of or on the basis of pregnancy, childbirth, or related medical conditions. The second clause of the PDA says that employers must treat “women affected by pregnancy . . . the same for all employment-related purposes . . . as other persons not so affected but similar in their ability or inability to work.” 42 U.S.C. §2000e(k). Now, in Young v. United Parcel Service, Inc. the Supreme Court has established the burden of proof, to reach a jury, for employees who file pregnancy discrimination lawsuits under the PDA.
Young v. United Parcel Service
Ms. Young filed suit under the PDA against her employer, UPS, after UPS denied her request for light duty. Ms. Young was a UPS driver. After becoming pregnant, her doctor placed her on lifting restrictions. Ms. Young could not meet the lifting requirements of the UPS driver position, so she requested to be put on light duty. UPS had a policy that it would provide light duty only to those injured on the job, those disabled under the American’s with Disabilities Act (ADA), and drivers who lost their DOT certifications. Because Ms. Young did not fall within any of the categories under the UPS light duty policy, UPS denied her light duty request and put her on unpaid leave.
The lower court summarily dismissed Ms. Young’s lawsuit finding that: (1) Ms. Young did not prove she was treated differently than similarly situated non-pregnant workers, and (2) she was not “disabled” under the ADA. Young v. United Parcel Service Inc., 575 U.S. __, 8 (2015). The court also found UPS had a legitimate nondiscriminatory reason for failing to accommodate pregnant women and Ms. Young had not created a fact issue for the jury as to whether the reason was pretextual. Id.
The Fourth Circuit Court of Appeals affirmed the lower court’s decision and stated “UPS has crafted a pregnancy-blind policy” that is “at least facially a ‘neutral and legitimate business practice,’ and not evidence of UPS’s discriminatory animus toward pregnant workers.” Young v United Parcel Service, Inc., 707 F.3d 437, 446 (2013). Ms. Young appealed to the United States Supreme Court which changed the test trial courts can use to dismiss pregnancy discrimination lawsuits before they ever reach a jury.
Now, for a pregnant employee to establish a claim under the PDA, based on disparate treatment for failure to accommodate, the pregnant employee must demonstrate that (1) she belongs to the protected class, (2) she sought accommodation, (3) the employer did not accommodate her, and (4) the employer did accommodate others “similar in their ability or inability to work.” Young v. United Parcel Service, Inc., 575 U.S. __, 20 (2015). The employer may then seek to justify its refusal to accommodate the employee by relying on legitimate, nondiscriminatory reasons for denying the requested accommodation. Id. at 21.
If the employer offers an apparently legitimate, nondiscriminatory reason for its actions, the plaintiff may in turn show that the employer’s proffered reasons are in fact pretextual. Id. The Supreme Court goes further to state an employee may reach a jury on this issue by providing sufficient evidence that the employer’s policies impose a significant burden on pregnant workers and the employer’s 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. Id.
The Supreme Court sent the case back to the Fourth Circuit to implement the new test and suggested, by way of example, Ms. Young might be able to establish an inference of discrimination because so many other categories of non-pregnant employees were accommodated with light duty and pregnant employees were not. Id. A jury could find UPS’s legitimate, non-discriminatory reasons for not accommodating pregnant workers was not sufficiently strong and instead gives rise to an inference of discrimination. Id.
The Court specifically instructs that the employer’s “reason 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.” Id. The new test implemented by the Supreme Court will make it easier for employee’s who file pregnancy discrimination claims under the PDA to get their claims in front of a jury.
In reaching its conclusion, the Supreme Court stated it could not rely on the EEOC’s guidance on the issue. Specifically, in July of 2014, shortly after the Supreme Court agreed to hear the Young v. UPS case, the EEOC issued guidelines that state “[a]n 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).” EEOC Compliance Manual §626-I(A)(5), p.626:0009 (July 2014). The EEOC further added that “an employer may not deny light duty to a pregnant employee based on a policy that limits light duty to employees with on-the-job injuries.” Id. at 626:0028.
While the Supreme Court stated it would not follow this guidance from the EEOC in making its decision in the Young v. UPS case, it stated it had “no view” with regard to the EEOC’s guidance related to the new 2008 Amendments to the ADA. The Court specifically noted that Ms. Young’s case arose before the enactment of the Americans with Disabilities Amendments Act of 2008 (ADAA), which significantly broadened the definition of “disability” under the ADA. As interpreted by the EEOC, the new statutory definition requires employers to accommodate employees whose temporary lifting restrictions originated off the job. See 29 CFR pt. 1630, App., §1630.2(j)(1)(ix). The Supreme Court specifically stated that it expressed “no view on these statutory and regulatory changes.” Young v. United Parcel Service Inc., 575 U.S. __, 10 (2015).
Therefore, for new pregnancy discrimination claims, employees may attempt to establish that medical conditions related to their pregnancy qualify them as disabled under the ADAA of 2008. Under the ADAA, the employer can assert the undue hardship defense to any requests for reasonable accommodations. However, for claims brought under the PDA, employers will have to satisfy the “legitimate nondiscriminatory reason” defense set out in the Young v. UPS case and not rely on the expenses or inconveniences of the accommodation.
In light of the Supreme Court ruling, all private and government employers should have their employment policies reviewed by an employment law attorney. The employer may need to update its policies relating to pregnant employees and the availability of light duty, or other accommodations.
*Vanessa A. Gonzalez is a partner at Bickerstaff Heath Delgado Acosta LLP and is Board Certified in Labor and Employment Law by the Texas Board of Legal Specialization.