In a 6-3 decision yesterday, the U.S. Supreme Court sided with a pregnant employee who brought a discrimination lawsuit against her employer for refusing to grant a pregnancy-related lifting restriction. While the case is an important victory for employees overall, in some cases, the Court’s ruling might actually make it harder for victims of pregnancy discrimination to prove their claims. The case is Young v. UPS, Case No. 12-1226.
As Cleveland pregnancy discrimination lawyers, we have seen a number of cases involving pregnant workers denied lifting restrictions by their employers, particularly in the healthcare field and factory setting. For these employees, the Court’s decision is going to have a significant impact on whether they can successfully pursue a claim.
The Federal Law Regarding Pregnancy Discrimination in Employment
Among other things, Title VII of the Civil Rights Act of 1964 bans employment discrimination against employees because of sex. In 1978, Congress enacted the Pregnancy Discrimination Act (the “PDA”), which amended Title VII’s definition of discrimination “because of sex” to include discrimination “on the basis of pregnancy, childbirth, or related medical conditions.” 42 U.S.C. § 2000e(k). The PDA also requires 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.” Id. (emphasis added). In Young v. UPS, the Supreme Court considered the meaning of that latter provision, and sought to establish a test for applying it in pregnancy discrimination cases.
The Facts of Young v. UPS
Peggy Young worked for UPS as a part-time driver. When she became pregnant, her doctor instructed her not to lift more than twenty pounds. Unfortunately for her, UPS required drivers to be able to lift up to seventy pounds. The company did grant exceptions for employees with lifting restrictions due to on-the-job injuries or disabilities protected by the Americans with Disabilities Act, as well as those who had lost their Department of Transportation driving certificates. When Young requested such an exception however, UPS said no. As a result, the company would not allow her to work at all while she had a pregnancy-related lifting restriction.
Young brought a claim against UPS for pregnancy discrimination based on its failure to accommodate her lifting restriction. Although she offered evidence that UPS accommodated non-pregnant employees with similar lifting restrictions in the past, both the District Court and the Court of Appeals rejected her claim. Yesterday, the Supreme Court held that Young’s case should not have been dismissed.
The Court’s Analysis
The Court’s decision is significant because it provides guidance on when an employer’s refusal to grant a lifting restriction or other accommodation (such as a leave of absence) will be considered discriminatory under the PDA.
As with other types of employment discrimination claims, the employee will first have to establish a prima facie case of discrimination. In this context, that requires showing: the employee belongs to a protected class (i.e. is pregnant); the employee asked for an accommodation; the employer denied the request; and, the employer did accommodate others “similar in their ability or inability to work.” In most cases, the key inquiry will be whether similarly situated non-pregnant employees received accommodations from the employer.
Once the employee establishes a prima facie case, the employer must then provide a “legitimate, non-discriminatory” reason for denying the accommodation request. Critically, the reason offered “normally cannot consist simply of a claim that it is more expensive or less convenient” to accommodate pregnant employees than it is to accommodate others. In most cases, the reason the employer refuses to grant a lifting restriction is either expense or convenience, so the Court’s limitation is very significant.
Assuming the employer can demonstrate a legitimate, non-discriminatory reason, the pregnant employee must then prove the reason offered is a pretext for discrimination. To do that, the employee must show the employer’s policy imposes “a significant burden on pregnant workers.” She must also show that the reason for the policy is “not sufficiently strong to justify the burden,” which in turn can give rise to an inference of intentional discrimination.
The particular standard for proving pretext adopted by the Court is a new one. On top of that, the Court’s language is complex, making the exact contours of the test somewhat unclear. However, the Court suggested an employee could meet the significant burden standard “by providing evidence that the employer accommodates a large percentage of nonpregnant workers while failing to accommodate a large percentage of pregnant workers.” As an example, the Court used Young’s evidence that UPS accommodates “most nonpregnant employees with lifting limitations while categorically failing to accommodate pregnant employees with lifting limitations.” Rather than ultimately deciding whether or not Young met the pretext burden in her case, the Court remanded it to the Court of Appeals to make that determination.
The Impact of the Young Decision
At first glance, Young seems like an obvious victory for pregnant employees. And certainly, the Court’s decision means that employers will be required to grant lifting restrictions and other accommodations for pregnant employees in many cases. As a practical matter, employers will often be unable to offer a reason for denying an accommodation other than expense or inconvenience, which the Court says are no longer acceptable reasons.
But in cases where the employer does offer a legitimate, non-discriminatory reason, the Court’s test for proving pretext might actually make it harder for some victims of pregnancy discrimination to prove their cases. First, the Court’s “significant burden” test is not a model of clarity. The Court’s opinion does not provide guidance on what constitutes a “large percentage” sufficient to meet that test. In smaller workplaces, particularly where only a few employees have ever even sought accommodations, there may not be a large enough sample size to easily apply the “large percentage” inquiry. Second, it is hard to objectively define whether an employer’s claimed reason for denying pregnancy accommodations is “sufficiently strong” enough, or whether it gives rise to an inference of discrimination. Will courts simply defer to an employer’s policy—even a suspicious one—as long as it doesn’t seem too suspicious? As courts sort out these questions in the next few years, there is a risk that an overly technical interpretation could lead to unjust (and unintended) outcomes.
In the meantime, we are left with somewhat of a guideline for pregnant employees who have been denied an accommodation. Based on the Court’s ruling, showing that “at least some” similarly situated employees received accommodations denied to the plaintiff will still be important in proving pregnancy discrimination. As the Court put it, “why, when the employer accommodated so many, could it not accommodate pregnant women as well?” That is of course exactly right. It’s just that we don’t yet know how many is “so many.”
Other Protections for Pregnant Employees May be Available
Despite these uncertainties, the Court did address other possible protections for pregnant employees denied accommodations at work. The Court was careful to point out that Peggy Young’s case involved a claim of “disparate treatment” discrimination, not “disparate impact” discrimination. Those are two separate types of legal claims, and the distinction is an important one. Disparate treatment cases focus on whether an employer—through policies or otherwise—intentionally discriminated against employees. By contrast, disparate impact cases concern policies and practices that are facially non-discriminatory, but have a discriminatory effect, or “impact,” on a class of protected employees, such as pregnant employees. The decision in Young notes that employees can use disparate impact claims to challenge an employer’s refusal to grant lifting restrictions to pregnant employees. As a result, we may see more employees doing just that.
The Court also pointed out that many pregnant employees now qualify for protection under the Americans with Disabilities Act. The ADA generally requires employers to make reasonable accommodations for employees with disabilities, regardless of whether employees are accommodated for other reasons. Under the 2008 amendments to the ADA, pregnant employees with complications will often be protected when they need lifting restrictions or other accommodations, even if not protected by the PDA.
Protect Your Rights in the Workplace
On balance, the Young decision is a victory for pregnant employees. It means employers cannot have a blanket policy refusing lifting restrictions and other accommodations for pregnant employees while granting them to others. Still, the truth of the matter is that pregnant employees will continue to face less favorable treatment in some workplaces. And in some of those cases, the Young decision might mean they will be unable to prove their claims of discrimination.
The Cleveland pregnancy discrimination attorneys at Bolek Besser Glesius LLC have helped numerous employees denied pregnancy-related lifting restrictions or other accommodations at work. If you think your rights have been violated, we might be able to help you too.