Supreme Court: Employers Cannot Exclude Pregnant Women from Broad Accommodation Policies
Eight years ago, Peggy Young lost her medical coverage after she was forced to take an extended leave of absence from her job at UPS, because UPS would not accommodate her pregnancy-related weight-lifting restriction (her doctor limited her to lifting no more than 10-20 pounds during pregnancy). Although UPS accommodated other employees with restrictions stemming from a wide range of sources—including a disability; an on-the-job injury; or loss of a commercial driver’s license due to a drunk driving charge—the company placed pregnancy in the narrower field of conditions for which they were not willing to make accommodations.
Young sued, asserting that UPS violated the Pregnancy Discrimination Act (“PDA”) by treating her differently than other similarly situated employees because of her pregnancy. Her case was heard by the Supreme Court in December 2014; we discussed the case, its factual background, and its possible outcomes, here. This week, the Supreme Court, in a 6-3 vote, issued a ruling favorable to Young: it rejected the lower court’s narrow reading of the Pregnancy Discrimination Act, reversed its dismissal of Young’s case, and sent the case back to the appeals court for further review.
The ruling provides powerful support for pregnant employees seeking to use the Pregnancy Discrimination Act to assert claims of discrimination. But the majority opinion—written by Justice Breyer and joined by Chief Justice Roberts and Justices Ginsburg, Sotomayor, and Kagan, with Justice Alito concurring in the judgment—is not a perfect win, and pregnant employees may still face challenges in bringing and litigating claims of pregnancy-related discrimination.
The majority opinion concluded that a pregnant employee alleging discrimination may prove her case by showing that the employer failed to respond to her request for accommodation, while accommodating others who were “similar in their ability or inability to work.” As in other individual discrimination cases, an employer can respond by arguing that it had a legitimate, nondiscriminatory reason for denying the accommodation. But the pregnant woman can prevail by showing that the employer’s stated reason is “pretextual” or untrue. In Young’s case, this means that she will be entitled to a jury trial if she can show that there is a real factual dispute about whether her employer discriminated against her on the basis of pregnancy when it failed to accommodate her pregnancy and whether UPS’s reason for not accommodating her was true. This three-step legal test is known as the McDonnell Douglas burden-shifting framework. It allows plaintiffs, like Young, to prove discrimination when they only have indirect or circumstantial evidence that their employer treated them unfairly because they were pregnant.
In reaching its holding, the majority rejected both Young’s and UPS’s interpretation of the PDA. The statute is short, with only two main parts. The first part defines sex discrimination as including pregnancy discrimination. The second part requires employers to treat pregnant employees the same “as other persons not so affected but similar in their ability or inability to work.” Young and UPS disagreed about how to interpret the second clause. Young argued that pregnant employees should receive accommodations if any other employee receives accommodations for similar limitations. UPS argued that the clause only explains that pregnancy discrimination is a form of sex discrimination, a view that the dissent adopted. The majority rejected both views, saying that Young’s view went too far, and would force employees to favor pregnant employees over all other employees; but that UPS’s view was too narrow, and not what Congress intended when it passed the PDA. The majority opinion instead sought a middle ground.
In practice, this means that policies that are supposedly pregnancy-neutral may not protect employers from having to accommodate pregnant employees. In other words, employers like UPS may have policies that do not specifically reference pregnancy. If that policy accommodates many nonpregnant employees but does not accommodate pregnant employees with similar work abilities or limitations, then courts could still find the policy to be discriminatory. But the majority’s opinion also means that an employer still may refuse to accommodate pregnant employees while still accommodating some other nonpregnant employees without falling afoul of the PDA. It just depends on which nonpregnant employees are accommodated, and how many, and why. Trial and appellate courts are now going to be tasked with figuring out where these lines get drawn, and plaintiffs will still have to fight long-term, complex court cases in order to prove their claims.
Of course, pregnant employees may have other legal tools at their disposal that were not available to Young when she brought her claim eight years ago. As we discussed in a previous blog post, here, Congress’s expansion of the definition of “disability” under the Americans with Disabilities Act (“ADA”) brings under its purview some temporary conditions associated with pregnancy; and specifically includes impairments that limit an individual’s ability to lift, stand, or bend. The Equal Employment Opportunity Commission (“EEOC”) has promulgated guidance that specifically prohibits employers from exempting pregnancy-related conditions from ADA protections (though the majority in Young declined to rely on the guidance). And pregnant employees in twelve states and five cities can rely on local and state laws that provide greater protections than the PDA. But for women in the remaining states—including Massachusetts—the PDA and the Supreme Court’s new interpretation of it remain the most viable means of challenging discrimination based on pregnancy. Advocates for pregnant women hope that will change soon in Massachusetts, as the state legislature is currently considering a Pregnant Workers Fairness Act, which would require most state employers to grant reasonable accommodations to pregnant women.
Click here to read about Zalkind Duncan & Bernstein’s employment law practice.