U.S. Supreme Court Revives Suit Against UPS, Extending McDonnell-Douglas Burden Shifting Framework to Pregnancy Discrimination Cases
The U.S. Supreme Court vacated a Fourth Circuit decision Wednesday, reviving a pregnancy bias case against the United Parcel Service brought by a former delivery driver who was denied a light-duty work accommodation while pregnant. In doing so, the Court for the first time applied the well-known McDonnell-Douglas burden shifting framework to these types of pregnancy discrimination cases. However, this case may have limited impact because Congress has since amended federal discrimination laws to make pregnancy-related accommodations much more likely and because states and other locales have begun to pass laws explicitly mandating pregnancy accommodations.
In 2006, Peggy Young, after suffering several miscarriages, became pregnant. Her doctor told her she should not lift more than 20 pounds during the first 20 weeks of her pregnancy or more than 10 pounds thereafter. UPS requires drivers be able to lift up to 70 pounds. UPS told Young she could not work while under a lifting restriction, and Young stayed at home without pay and eventually lost her medical coverage. UPS did, however, offer light duty work accommodations to three other classes of employees: (1) drivers who had become disabled on the job; (2) those who had lost their DOT certifications; or (3) those who suffered from a disability covered by the Americans with Disabilities Act.
The Pregnancy Discrimination Act makes clear that Title VII’s prohibition against sex discrimination applies to discrimination based on pregnancy. It also requires employers to 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.” It was the latter clause that the parties fought over.
Young claimed that because UPS accommodated other classes of workers with 20-pound lifting restrictions it should have accommodated her too because she was similar in her ability or inability to work. UPS argued Young had it wrong. Yes, UPS accommodated those three classes of employees with 20-pound lifting restrictions, but any employee – pregnant or non-pregnant – could qualify under those classes, and therefore it was treating her exactly like everyone else.
The Court said that both parties had it wrong. Pregnant women are not automatically entitled to a reasonable accommodation simply because employers offer accommodations to other employees – as they said it: they are not entitled to a “most-favored nation status.” Disparate-treatment law permits an employer to implement policies that are not intended to harm members of a protected class, even if their implementation sometimes harms those members, as long as the employer has a legitimate, nondiscriminatory, non-pretextual reason for doing so. At the same time, the Court found UPS’s interpretation of the law would “fail to carry out an important congressional objective” of treating pregnancy disability like disabilities stemming from disease and accidents. Instead, the Court played it down the middle.
The Court built its holding on the longstanding McDonnell Douglas framework: the plaintiff belongs to the protected class; she sought accommodation; the employer did not accommodate her; and the employer did accommodate others similar in their ability or inability to work. The employer may then seek to justify its refusal to accommodate the plaintiff by relying on “legitimate, nondiscriminatory” reasons for denying accommodation. That such an accommodation is more costly or inconvenient is simply not an acceptable reason the court said. But if the employer proffers a legitimate reason, the employee then has the opportunity to show pretext. To do that, the plaintiff must show “sufficient evidence that the employer’s policies impose a significant burden on pregnant workers” and that its legitimate reasons for doing so “are not sufficiently strong to justify the burden” but instead give rise to an inference of intentional discrimination. A plaintiff can make this showing and get her case to the jury where the employer accommodates a large percentage of non-pregnant workers while failing to accommodate a large percentage of pregnant workers.
It’s the last part of the analysis that gives us pause. Is the Court essentially saying that if you accommodate most others, you pretty much have to accommodate pregnant workers too? And if so, does that provide them with the most-favored nation status the Court said they aren’t entitled to?
In applying the framework, the Court here held that Young had created a genuine issue of material fact regarding pretext as UPS accommodates a large percentage of non-pregnant workers while failing to accommodate a large percentage of pregnant workers seeking the same work limitation. “The record here shows that Young created a genuine dispute as to whether UPS provided more favorable treatment to at least some employees whose situation cannot reasonably be distinguished from hers.” As Justice Breyer put it: “why, when the employer accommodated so many, could it not accommodate pregnant women as well?” It is for a jury to decide the employer was motivated by the employee’s pregnancy or something else.
The Court admitted its novelty: “In our view, an individual pregnant worker who seeks to show disparate treatment through indirect evidence may do so through application of the McDonnell Douglas framework. That framework requires a plaintiff to make out a prima facie case of discrimination. But it is not intended to be an inflexible rule.”
It should be noted that the ADA has been amended since Young filed her case (and UPS even voluntarily changed its policy). In 2008, Congress expanded the definition of “disability” under the ADA to make clear that “physical or mental impairment[s] that substantially limi[t]” an individual’s ability to lift, stand, or bend are ADA-covered disabilities.” Thus, most pregnancy-related disabilities would now likely be protected by the ADA and subject to its reasonable accommodation requirements. The Court recognized that in light of this amendment, its decision may have limited impact, but it did not expand on that thought.
Finally, also worth noting is the Court’s view on EEOC guidelines issued after this case was filed. In July 2014, the EEOC issued a guideline that reads: “[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).” The EEOC further added “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.” If given controlling authority, this would obviously resolve Young’s claim. Although the Court’s holding essentially mirrors the new guideline, the Court went out of its way to reject the guideline as even being persuasive. The Court found the guideline to be inconsistent with previous EEOC guidelines and previous Court rulings. Further, the guideline was issued after the Court granted cert to this case, and the Court seemed perturbed by its “timing.”