Supreme Court “Delivers” New Life to Pregnancy Discrimination Claims in Young v. United Parcel Service, Inc.
It has been illegal for employers to discriminate against pregnant women in the workplace since 1978 when Congress enacted the Pregnancy Discrimination Act (PDA), 42 U.S.C. §2000e(k). Yet many employers and employees remain confused about precisely what the PDA requires. Last year, employees filed some 3,400 charges with the Equal Employment Opportunity Commission (EEOC) alleging pregnancy discrimination.1 The main complaint in recent times has been that employers have refused to accommodate pregnancies.
One reason for the confusion appears to be changing expectations of pregnant and soon-to-be pregnant workers. When the PDA was first enacted, employers sought to comply with the law by implementing policies designed to accommodate pregnant employees, for example, by reassigning them to less strenuous jobs or prohibiting them from business travel. Pregnant workers successfully challenged those policies in court on grounds that they kept pregnant workers from making their own choices about the level of risk imposed upon themselves and their fetuses. Now, pregnant and soon-to-be pregnant workers’ expectations seem to have shifted, and women are challenging their employer’s failure to accommodate pregnancy in the workforce.
Recently, the U.S. Supreme Court in Young v. United Parcel Service, Inc., 575 U.S. __, 135 S. Ct. 1338 (2015), breathed new life into pregnancy discrimination claims by holding that where other employees’ work-restrictions may be accommodated, employers may be required to similarly accommodate pregnant employees. Likewise, recent changes to Florida law have created increased protections to pregnant employees under the Florida Civil Rights Act.
The History of the Pregnancy Discrimination Act
Congress originally enacted the PDA in response to General Electric Co. v. Gilbert, 429 U.S. 125 (1976), when the Supreme Court held that a disability plan that covered sickness and accidents, but that excluded pregnancy-related absences, was not discriminatory on the basis of sex even though pregnancy was a characteristic confined to women.2 Due to general discontent with General Electric, two years later in 1978, Congress amended Title VII of the Civil Rights Act of 1964 to clarify that discrimination because of, or on the basis of, pregnancy, childbirth, or related medical conditions constitutes unlawful sex discrimination under Title VII.3
In the years following the PDA’s enactment, courts repeatedly struck down employer policies aimed at protecting pregnant employees and their fetuses, even in cases in which pregnant workers found themselves exposed to truly dangerous working conditions.
For example, the Supreme Court addressed fetal protection policies in UAW v. Johnson Controls, Inc., 499 U.S. 187 (1991), when a pregnant employee challenged a policy that excluded fertile women from working in certain jobs where they were exposed to unsafe levels of lead.4 The employer had implemented the policy after eight pregnant employees developed blood levels exceeding the Occupational Safety and Health Administration’s (OSHA) safe lead exposure limits for workers planning to have a family. Given that history, the employer argued that there was a business necessity in eliminating the risk of fetal harm and that infertility was a bona fide occupational qualification. Rejecting these arguments, the Court struck down the policy as violating the PDA.5
Young v. United Parcel Service, Inc.
On March 25, 2015, the Supreme Court rendered its decision in Young v. United Parcel Service, Inc. Here the Court addressed the second clause of the PDA, which provides that “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.”6 The Court posited several essential questions: “Does this clause mean that courts must compare workers only in respect to the work limitations that they suffer? Does it mean that courts must ignore all other similarities or differences between pregnant and nonpregnant workers? Or does it mean that courts, when deciding who the relevant ‘other persons’ are, may consider other similarities and differences as well? If so, which ones?”7 The justices’ answers to these questions split along nontraditional lines. Justice Breyer delivered the majority opinion in which Chief Justice Roberts and Justices Ginsburg, Sotomayor, and Kagan joined.8 Justice Alito filed a concurring opinion and Justice Scalia filed a dissenting opinion in which Justices Kennedy and Thomas joined. Justice Kennedy also filed a separate dissenting opinion.
• The Facts: Young Sought an Accommodation for a Lifting Restriction Imposed During Her Pregnancy — Young was a United Parcel Service (UPS) driver whose position required that she be able to lift parcels weighing up to 70 pounds, although her job generally required her to lift lighter packages.9 When she became pregnant, her doctor imposed a pregnancy-related, 20-pound lifting restriction.10 As she could not satisfy UPS’ 70-pound lifting requirement, UPS placed Young on an unpaid leave of absence until after the birth of her child. UPS refused Young’s request for light duty or an alternative work assignment.11
Young sued UPS alleging disparate treatment under the PDA because UPS refused to “accommodate” her by providing either light duty or alternative work during her pregnancy, though UPS accommodated some nonpregnant employees by providing them with light duty or temporary work assignments.12 Specifically, Young contended that UPS provided 1) temporary, alternative work to employees covered by a collective bargaining agreement who were unable to perform their normal job assignment after on-the-job injuries; 2) lifting jobs to drivers who lost their Department of Transportation (DOT) certification due to a failed medical exam, lost driver’s license, or involvement in a motor vehicle accident; and 3) light duty as an accommodation to employees disabled, but unable to perform the essential functions of their job under the Americans with Disabilities’ Act (ADA).13
The trial court held that Young failed to make a prima facie case of discrimination because the alleged comparators, i.e., employees injured on the job, disabled, or who had lost their DOT certification, were not similarly situated.14 The Fourth Circuit affirmed summary judgment for the employer, and Young appealed to the Supreme Court.15
• The Supreme Court’s Ruling — Rejecting UPS’ argument that the second clause of the PDA simply defines sex discrimination to include pregnancy discrimination (which is what the first clause of the PDA undisputedly does), the Supreme Court held that the second clause of the PDA requires that employers accommodate pregnant employees when it accommodates nonpregnant employees “similar in their ability or inability to work.”16 The Court applied a Title VII burden-shifting analysis to Young’s pregnancy accommodation claim, which is commonly referred to as the McDonnell Douglas framework and whereby an employee can establish a prima facie case of pregnancy discrimination by showing that 1) she is pregnant; 2) she sought an accommodation from her employer; 3) the employer did not accommodate her; and 4) the employer did accommodate others similar in their ability or inability to work.17
To rebut the prima facie case, an employer can present a legitimate, nondiscriminatory reason for not accommodating the employee, but the Court added that the employer could not rely upon the rationale that it was more expensive or less convenient to accommodate a pregnant employee than other nonpregnant workers.18
In addition, the Court in Young made it harder for employers to rebut PDA claims than other forms of disparate treatment employment discrimination. The Court held that an employee can establish discrimination by presenting evidence that “the employer’s policies impose a significant burden on pregnant workers and that the employer’s ‘legitimate, nondiscriminatory’ reasons are not sufficiently strong to justify the burden.”19 For example, the Court stated that a plaintiff can create a genuine issue of material fact that the employer’s legitimate, nondiscriminatory reason is pretext by “providing evidence that the employer accommodates a large percentage of nonpregnant workers while failing to accommodate a large percentage of pregnant workers.”20 Without opining on how the standard should be applied to the Young facts, the Court remanded the case to the Fourth Circuit to determine whether, under the Court’s new pretext standard, UPS’s reason for treating Young less favorably than other nonpregnant employees was pretextual.21
Twin Issues: “Raising” Pregnancy Discrimination Claims Under Florida Law
The legislature and courts in Florida have likewise struggled with how to address pregnancy discrimination claims under state law. Just last year, in April 2014, the Florida Supreme Court held that the prohibition against discrimination based on gender contained in the 1992 Florida Civil Rights Act (FCRA), F.S. §760.01, also protects pregnant workers from discrimination based on their pregnancy:22
Indeed, the capacity to become pregnant is one of the most significant and obvious distinctions between the female and male sexes. For this reason, discrimination based on pregnancy is in fact discrimination based on sex because it is discrimination as to a natural condition unique to only one sex and that arises “because of [an] individual’s…sex.”23
In legislation effective July 1, 2015, the Florida Legislature codified the Florida Supreme Court’s decision prohibiting employment discrimination on the basis of pregnancy.24 The newly enacted Florida statute also prohibits pregnancy discrimination in places of public accommodation.25 Like Title VII, however, the FCRA contains no explicit accommodation requirement, nor was one expressly included in the newly enacted legislation.26 Thus, the U.S. Supreme Court’s decision in Young may still have a significant impact upon pregnant employees in Florida.
Implications of Young
As with any significant change in the law, only time will tell Young’s full impact on pregnancy discrimination claims. But some things will likely occur. First, more pregnancy discrimination lawsuits will be brought as employers, employees, and courts wrestle to determine what type of accommodations the PDA requires. Additionally, significant disputes will arise over what employees are “similar in their ability or inability to work.” Finally, there may be some implications that have a long-standing effect on both employment law and administrative law, specifically pertaining to the distinctions between disparate treatment and disparate impact claims and the persuasiveness of guidance issued by federal agencies.
What Kind of “Accommodation” Is Required?
Many lawyers may be thinking: “What’s the big deal?” The ADA already requires most employers to accommodate disabled employees, and, as the ADA Amendments Act provided in 2008, a pregnant employee with lifting restrictions will likely be considered “disabled” and qualify for an accommodation.27 But under the ADA, employers must only accommodate a qualified individual, i.e., a person who, with or without a reasonable accommodation, can perform the essential functions of the job, unless such accommodation constitutes an undue hardship.28 In layman’s terms, the ADA only requires employers to accommodate employees who are still qualified to perform the essential functions of their job. In Young, by contrast, the plaintiff was not qualified to lift 70 pounds, which was an essential function of the UPS driver job. The type of accommodation that the Supreme Court has mandated under the PDA may require employers to provide pregnant employees with different jobs, such as temporary and light-duty jobs, than they are employed to do. For example, in a healthcare setting, an employee regularly exposed to chemicals that are harmful to a pregnant employee as part of her job, such as radiation, may need to be provided with a different job if she becomes pregnant.
Thus, the accommodation analysis under the PDA differs markedly from the reasonable accommodation assessment employers engage in under the ADA. If an employer receives an accommodation request from a pregnant employee with job restrictions, it should consider both analyses as applicable. In other words, for a pregnant employee with work restrictions who may qualify as “disabled,” an employer should consider whether that employee can still perform the essential functions of her job and what may be a reasonable accommodation. In addition, an employer who receives an accommodation request from a pregnant employee should consider how it may accommodate other employees who may be similar in their ability or inability to work and then provide a pregnant employee with a similar accommodation.
Who Are Employees “Similar in Their Ability or Inability to Work”?
For now it is unclear who will qualify as comparators under the PDA, that is, who will be considered “similar in their ability or inability to work” when compared to a pregnant employee. The Supreme Court majority opinion paints in very broad strokes, implying that numerous categories of different types of employees may be similar in their ability or inability to work. The majority opinion in Young considered and treated all three of the following categories as alleged comparators under the PDA:29
1) Employees unable to perform their normal job assignments after they were injured on-the-job who were provided temporary alternative work;
2) Drivers who lost their DOT certification because of failed medical exams, lost driver’s licenses, or involvement in motor vehicle accidents who were provided with lifting jobs; and
3) Employees who were disabled and unable to perform the essential functions of their job under the ADA who were provided with light-duty work.
In rejecting Young’s contention that the PDA provided pregnant workers with a “most-favored-nation” status, the Supreme Court also identified several employees who, arguably, would not be considered “similar in their ability or inability to work,” including employees with particularly hazardous jobs; employees whose workplace presence is particularly needed; long-term employees; employees with full-time status; employees over a certain age; employees with different job classifications; or employees with greater seniority.30
In considering evidence of pretext, the Supreme Court appeared to further limit applicable comparators. For example, the Court indicated that “if the facts are as Young says they are, she can show that UPS accommodates most nonpregnant employees with lifting restrictions while categorically failing to accommodate pregnant employees with lifting limitations,” and “Young might also add that the fact that UPS has multiple policies that accommodate nonpregnant employees with lifting restrictions suggests that its reasons for failing to accommodate pregnant employees with lifting restrictions are not sufficiently strong.”31 Nevertheless, the majority opinion did not address that one of the categories of employees it asserted was “similar in their ability or inability to work” were former drivers who lost their DOT certification and whose “accommodation” was to be placed into lifting jobs that Young was apparently unqualified to do.
Justice Alito’s concurring opinion may also offer insight into what characteristics should be considered when determining whether an employee is “similar in his ability or inability to work.” Justice Alito concluded that:
[P]regnant and non-pregnant employees are not similar in relation to the ability or inability to work if they are unable to work for different reasons. And this means that these two groups of employees are not similar in the relevant sense if the employer has a neutral business reason for treating them differently.32
Applying this interpretation, Justice Alito distinguished Young from several of the types of employees whom the majority of the Court considered similar in their ability or inability to work, citing accommodations required by the ADA and workers’ compensation laws applicable to on-the-job injuries as neutral reasons for accommodating such employees.33 Explaining that it was not evident from the record whether drivers who lost their DOT certification were able to perform physically demanding tasks, Justice Alito presumed that some were not and that UPS had, therefore, not provided a neutral business reason why pregnant drivers could not be given similar accommodations as drivers who lost their DOT certification. Unfortunately, the Court majority did not join Justice Alito’s concurring opinion, and it is yet to be seen whether his analysis will have any influence on lower courts seeking to apply Young’s principles.
Greater Implications of Young on Employment Law
As Justice Scalia noted in his dissenting opinion in Young, the majority opinion begins to unravel two historically distinct legal standards: disparate impact and disparate treatment.34 This distinction lies at the heart of any employment discrimination analysis. Yet the Court’s decision allows an employee to establish disparate treatment discrimination, which requires a showing that an employer intentionally engaged in discrimination, by presenting evidence that “the employer’s policies impose a significant burden on pregnant workers, and that the employer’s ‘legitimate, nondiscriminatory’ reasons are not sufficiently strong to justify the burden.”35 This standard begins to resemble that applicable to a “disparate impact” claim, when a court can hold a company responsible for inadvertently discriminatory policies, regardless of any lack of intent to discriminate. For disparate impact claims, however, a court can only order an employer to refrain from the discriminatory practice and cannot award any monetary damages. Thus, the Court’s new pretext standard may open employers up to liability for compensatory and punitive damages for pregnancy discrimination even when there is no discriminatory intent if a facially neutral policy has a disproportionate impact on pregnant employees.
Although the majority opinion in Young specified that this approach was limited to the PDA context, at the same time it noted that it “is consistent with our longstanding rule that a plaintiff can use circumstantial proof to rebut an employer’s apparently legitimate, nondiscriminatory reasons for treating individuals within a protected class differently than those outside the protected class.”36 Thus, as Justice Scalia observed in his dissent, the Court’s decision serves “only one purpose: allowing claims that belong under Title VII’s disparate impact provisions to be brought under its disparate-treatment provisions instead.”37
Greater Implications of Young on Administrative Law
Young also has implications for attorneys who regularly practice law in areas guided by federal administrative agencies. Traditionally, federal courts have in general deferred to the interpretations and guidance issued by federal agencies within the agencies’ specialized areas of practice, assuming that guidance is based upon a permissible interpretation of applicable federal statutes.38 But in an exception to that rule, the Supreme Court rejected the solicitor general’s argument that the Court should give weight to enforcement guidance for the PDA that the EEOC promulgated in July 2014.39 The Court noted that the enforcement guidance was promulgated after the Court accepted certiorari in Young and that the enforcement guidance was inconsistent with positions that the government had long advocated.40 The Court, thus, made clear that the timing, consistency, and thoroughness of consideration could limit an enforcement guidance’s persuasiveness.41 In the employment law context, this case is yet another example of the increasing number of federal courts that are refusing to defer to interpretations of various federal agencies, such as the EEOC, the National Labor Relations Board, and the Department of Labor.42
After Young, employees will find it easier to prevail on pregnancy discrimination claims. At the same time, the Court’s new standard adds to employers’ uncertainty in dealing with such claims. Until more decisions applying Young appear, employers’ best course is to review their policies to ensure that they do not limit accommodations to nonpregnant workers. Likewise, despite the Court’s new accommodation requirement, employers should remain cognizant of the fact that the employment status of pregnant woman is still protected. For that reason, an accommodation one pregnant employee requests cannot be forced upon another pregnant employee who does not request accommodation. As with the accommodation analysis conducted under the ADA, the best solution is to engage in an interactive process with the employee to determine whether and what accommodation is sought, how the employer treats other employees similar in their ability or inability to work, and whether such an accommodation can be reasonably provided.
1 See U.S. Equal Employment Opportunity Commission, Pregnancy Discrimination Charges FY 2010-14, http://www.eeoc.gov/eeoc/statistics/enforcement/pregnancy_new.cfm.
2 General Electric Co. v. Gilbert, 429 U.S. 125, 145 (1976).
3 See Young v. UPS, Inc., 135 S. Ct. 1338, 1350 (2015) (citing H.R. Rep. No. 95-948 at 3-4 (1978); S. Rep. No. 95-331 at 8 (1978)).
4 UAW v. Johnson Controls, Inc., 499 U.S. 187, 191-92 (1991).
5 Id. at 191-92, 210.
6 42 U.S.C. §2000e (k) (emphasis added).
7 Young, 135 S. Ct. at 1348-49.
8 Of the female Supreme Court Justices, only Justice Ginsburg has children. See U.S. Supreme Court, Biographies of Current Justices of the Supreme Court, http://www.supremecourt.gov/about/biographies.aspx.
9 Young,135 S. Ct. at 1344.
10 Id. at 1344.
13 Id. at 1344, 1346.
14 Id. at 1347.
16 Id. at 1354.
21 Id. at 1355-56.
22 Delva v. The Continental Group, Inc., 137 So. 3d 371 (Fla. 2014).
23 Id. at 375 (citing Fla. Stat. §760.10(1)(a)). The Florida Supreme Court’s decision that pregnant employees were protected under the Florida Civil Rights Act because pregnancy was a “primary characteristic unique to the female sex” starkly contrasts with how the U.S. Supreme Court addressed the same question under Title VII in General Electric Co., 429 U.S. at 136-38.
24 Ch. 2015-68, §§1-8, Laws of Fla.
26 As amended, the FCRA states: “It is an unlawful employment practice for an employer: (a) To discharge or to fail or refuse to hire any individual, or otherwise to discriminate against any individual with respect to compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, pregnancy, national origin, age, handicap, or marital status. (b) To limit, segregate, or classify employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities, or adversely affect any individual’s status as an employee because of such individual’s race, color, religion, sex, pregnancy, national origin, age, handicap, or marital status.” Fla. Stat. §760.10(1).
27 See ADA Amendments Act of 2008, 122 Stat. 3555, codified at 42 U.S.C. §12102(1)-(2). The Supreme Court did not consider the applicability of the ADA, as amended, in Young because it was enacted after Young’s pregnancy. Young,135 S. Ct. at 1348.
28 42 U.S.C. §§12111(8), 12112(a).
29 The Supreme Court only remanded the case to the Fourth Circuit to determine whether Young created a genuine issue of material fact as to whether UPS’ legitimate, nondiscriminatory reason was pretextual. The Court itself held that, “Young created a genuine dispute of material fact as to the fourth prong of the McDonnell Douglas analysis [that the employer did accommodate others similar in their ability or inability to work],” citing all three of UPS’ separate accommodation issues” (regarding on-the-job injuries, ADA accommodations, and the loss of DOT certifications). Young, 135 S. Ct. at 1344, 1346, 1355-56.
30 Young, 135 S. Ct. at 1349-50.
31 Id. at 1354 (emphasis added).
32 Id. at 1359 (Alito, J., concurring).
33 One rationale that neither the Young majority nor concurring opinion considered was that the temporary alternative work assignments provided to employees injured on the job and employees who lost their DOT certification was provided pursuant to a collective bargaining agreement (CBA) negotiated on behalf of and for the benefit of UPS’s unionized workforce. Young, 135 S. Ct. at 1346. The parties to the CBA could have, but did not, negotiate similar temporary alternative work assignments for pregnant employees. Thus, one unintended consequence of Young was to effectively extend the benefits provided to employees pursuant to the CBA. It will be interesting to see what, if any, effect Young may have in the future on collective bargaining negotiations under the National Labor Relations Act.
34 See Young, 135 S. Ct. at 1365-66 (Scalia, J., dissenting).
35 Id. at 1343.
36 Id. at 1354.
37 Id. at 1338, 1366 (Scalia, J., dissenting).
38 See Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-43 (1984); Skidmore v. Swift & Co., 323 U.S. 134 (1944).
39 Young, 135 S. Ct. at 1351. The EEOC has since revised its Enforcement Guidance, revising §1.B.1, regarding disparate treatment and §1.C.1, regarding light duty, in response to the Supreme Court’s decision in Young.
40 Id. at 1351-52.
41 Id. at 1352.
42 See also Christopher v. SmithKline Beecham, 132 S. Ct. 2156, 2169 (2012) (“We find the DOL’s interpretation of its regulations quite unpersuasive. The interpretation to which we are now asked to defer — that a sale demands a transfer of title — plainly lacks the hallmarks of thorough consideration. Because the DOL first announced its view that pharmaceutical sales representatives do not qualify as outside salesmen in a series of amicus briefs, there was no opportunity for public comment, and the interpretation that initially emerged from the [d]epartment’s internal decisionmaking process proved to be untenable.”); D.R. Horton, Inc. v. NLRB, 737 F.3d 344, 362 (5th Cir. 2013) (internal citations omitted) (“The issue here is narrow: [D]o the rights of collective action embodied in this labor statute make it distinguishable from cases which hold that arbitration must be individual arbitration? We have explained the general reasoning that indicates the answer is ‘no.’ We add that we are loath to create a circuit split. Every one of our sister circuits to consider the issue has either suggested or expressly stated that they would not defer to the NLRB’s rationale, and held arbitration agreements containing class waivers enforceable.”).
Nicole Bermel Dunlap is counsel with Ford & Harrison, LLP, in Tampa. Although she was recently admitted to The Florida Bar, she has exclusively represented employers in both employment litigation and traditional labor matters for the previous seven years. She received her B.A., magna cum laude, with honors in philosophy from Sewanee: The University of the South, and her J.D., magna cum laude, from the University of Memphis.
This column is submitted on behalf of the Labor and Employment Law Section, Frank E. Brown, chair, and Robert Eschenfelder, editor.