On March 25, 2015, the United States Supreme Court issued its much-anticipated decision in Young v. United Parcel Service, Inc. Employers should take note of this decision because it sets a new standard for evaluating claims that an employment policy violates the Pregnancy Discrimination Act (PDA), the law that prohibits employment discrimination based on pregnancy, childbirth or related medical conditions. Under this standard, employers who maintain a policy of providing workplace accommodations to some, but not all, employees for non-pregnancy-related reasons (such as a light duty work policy applicable only to employees with work-related injuries) may face liability if they do not provide the same accommodations to pregnant workers similarly unable to work.
As we previously reported, the plaintiff in Young challenged United Parcel Service’s (UPS) refusal to grant her light duty work to accommodate her pregnancy-related lifting restrictions. UPS only made light duty work available to employees who were hurt on the job, who qualified for accommodations under the Americans with Disabilities Act (ADA) and who had lost their Department of Transportation certification. UPS maintained that it did not violate the PDA because it treated the plaintiff the same way it treated other workers with restrictions stemming from off-the-job injuries, who also did not qualify for light duty work. In contrast, Young argued that an employer must accommodate pregnancy-related disabilities if it accommodates any disabilities that have other causes but similar effects on an employee’s ability to work. The Fourth Circuit sided with UPS, holding that the PDA is satisfied so long as an employer’s policy treats pregnant workers and non-pregnant workers alike.
The Supreme Court overturned the Fourth Circuit decision, breathing new life into the suit against UPS. In so doing, however, the Supreme Court rejected the positions of Young and UPS. The Court also declined to give weight to the EEOC’s recent guidance on the subject, citing difficulties with the timing, consistency and thoroughness of consideration behind the guidance.
Relying on the specific language and history of the PDA, the Court forged a different path. According to the Court, an employee can state a prima facie case of intentional discrimination with respect to an employment policy under the PDA if she can show that she sought a pregnancy-related accommodation, her employer refused to provide the accommodation and the employer did accommodate non-pregnant employees similar in their ability or inability to work. Upon such a showing, the employer must then articulate a legitimate, non-discriminatory reason for the policy, beyond increased cost or inconvenience. Provided the employer provides such a reason, the employee must then show that reason is a pretext for pregnancy bias, which she can do by demonstrating that the policy imposes a “significant burden” on pregnant employees, and the employer’s reason for the policy is not “sufficiently strong” to justify the burden, such that intentional discrimination can be inferred. The Young Court did not decide the pretext issue, but instead remanded the case for further proceedings.
The standard articulated by the Supreme Court raises significant questions. First, although the Court stated that expense or convenience “normally” will not suffice to justify a policy that does not provide for accommodations to pregnant workers, the Court gave no guidance as to what might constitute a legitimate, non-discriminatory reason for such a policy. Also, allowing a plaintiff to show pretext by attacking the “sufficiency” of the reason for the policy appears to be in tension with the substantial body of authority under which courts otherwise have refused to second-guess the wisdom or correctness of employers’ business reasons, and instead have focused the pretext inquiry on whether the proffered reason was a lie. The extent to which the Young standard, which rests upon the specific language of the PDA, will impact the standard applied to other discrimination claims remains to be seen.
Following Young, employers should evaluate their policies carefully to determine whether they could create a risk of liability under the PDA. Light duty or alternative work policies represent an obvious starting point for this evaluation. Any policy that provides a benefit to non-pregnant employees that is not available to pregnant employees could also provoke a challenge, even if some non-pregnant employees also do not benefit from the policy. Employers should reevaluate any policies that may exclude pregnant employees from job accommodations, leave or other benefits, and carefully evaluate any decision concerning whether to accommodate pregnancy-related limitations.