May 13, 2015
"Light Duty" = Heavy Burden For Employers
The United States Supreme Court recently issued its much-anticipated decision in Young v. United Parcel Service, Inc. Employers are now on notice of a new standard for facially neutral policies affecting pregnant employees challenging workplace accommodation policies and practices under Title VII of the Civil Rights Act (“Title VII”), as amended by the Pregnancy Discrimination Act (“PDA”).
In a 6-3 decision, the Court held that a pregnant worker can establish a prima facie case of disparate treatment by showing under the age-old McDonnell Douglas burden-shifting framework, that: (1) she belongs to a protected class; (2) she sought an accommodation; (3) the employer did not accommodate her; and (4) the employer accommodated others “similar in their ability or inability to work.” Once these elements are shown, the burden of production then shifts to the employer to proffer a legitimate, nondiscriminatory reason for denying the accommodation. That reason must be more than an employer’s claim that it is more expensive or less convenient to add pregnant women to the categories of those whom the employer accommodates. Once the employer proffers a legitimate, nondiscriminatory reason, the employee must establish the employer’s reason is a pretext for discrimination. Young provides new examples of how this can be accomplished in the context of the PDA.
Provisions of the PDA
The PDA is part of Title VII of the Civil Rights Act of 1964, which prohibits discrimination in the conditions, privileges and terms of employment based on sex. The first part of the PDA provides that Title VII’s sex discrimination prohibition applies to discrimination on the basis of pregnancy, childbirth, or medical conditions related to either or both. The second provision of the PDA provides that employers shall treat “women affected by pregnancy, childbirth, or related medical conditions…the same for all employment-related purposes…as other persons not so affected but similar in their ability or inability to work.” The legal analysis of Young requires the interpretation of the second provision of the PDA. In particular, the interpretation of the phrase “other persons” was central to the Supreme Court’s decision in Young.
Facts of the Young Case
Peggy Young was a pregnant, part-time delivery driver for UPS. All UPS drivers are required to lift up to 70 pounds without assistance. After she became pregnant, Young was placed on a weight lifting restriction by her doctor, recommending that she not lift more than 20 pounds. Her subsequent request for an accommodation to light duty work was denied by UPS on the ground that lifting more than 20 pounds was an essential function of the job. As a result, Young was not permitted back to work.
As do many employers, UPS’ policies provide light-duty assignments to certain categories of employees, such as those with on-the-job injuries, employees covered by the Americans with Disabilities Act (“ADA”), and employees who lost their Department of Transportation certification and were unable to drive. Employees who do not fall into any of these categories (like Young) are ineligible for light-duty assignments – whether male or female. Because she did not fit squarely within one of these seemingly neutral categories, Young remained out of work at UPS, without pay or medical benefits, for the majority of her pregnancy. Young sued UPS, alleging pregnancy discrimination because it did not accommodate her weight lifting restriction, while simultaneously accommodating other drivers who could not work. The PDA, Young argued requires employers to provide pregnant employees with light-duty work if they provide similar work to other employees in other circumstances.
UPS argued that Young was not discriminated against due to her pregnancy at all. In fact, because she was not covered by any of its policies for accommodating employees, she was treated precisely the same as any other employee who did not qualify under those polices – male or female. The district and appellate courts agreed with UPS. The Supreme Court did not.
The Supreme Court’s Decision
In rejecting UPS’ argument, the Supreme Court set a new framework within which employees can demonstrate pregnancy discrimination. An employee alleging that the denial of an accommodation violates the PDA may prove her case through the traditional burden-shifting approach used in employment discrimination cases, but with a different way of showing that an employer’s valid, non-discriminatory reason for its decision is a pretext for discrimination. Young could show pretext by proving that UPS’ policies were a “significant burden” upon pregnant employees and that UPS’ reasons for its policies were “not sufficiently strong to justify the burden,” but rather “when considered along with the burden imposed” gave rise to an inference of discrimination by the employer. An employee can create a genuine issue of material fact about whether a significant burden exists “by providing evidence that the employer accommodates a large percentage of non-pregnant workers, while failing to accommodate a large percentage of pregnant workers.”
Notably, the Court highlighted that UPS had multiple policies that accommodated non-pregnant employees in various categories who had restrictions similar to Young’s. The Court explained that if Young’s version of the facts are accurate, she could show that UPS accommodated “most” non-pregnant workers with lifting restrictions while “categorically failing” to do the same for pregnant workers. That, combined with the number of policies UPS had to accommodate non-pregnant employees with lifting restrictions, suggests that UPS’ reasons for failing to accommodate pregnant employees are “not sufficiently strong” and support a jury finding of “an inference of intentional discrimination.”
What Does Young Mean for Employers?
Employers should review their accommodation policies and practices and to whom they apply. Employers that have policies providing accommodations or other types of benefits to categories of employees (where pregnancy is not one of those categories) need to ensure they have legitimate, nondiscriminatory reasons for doing so. In most cases, cost alone will not suffice. Additionally, if the categories of workers to whom those accommodations or other benefits are offered make up a substantial number of employees, but still exclude pregnant workers, the risk of denying such benefits to pregnant workers will be significant.
Importantly, Young does not outright reject an employer’s ability to have a light-duty policy reserved only for employers injured on the job. But it does underscore that employers excluding pregnant employees from discussions about available reasonable accommodations – when other categories of employees remain eligible for such accommodations – run a substantial risk of liability.