U.S. Supreme Court Invents New "Significant Burden" Standard for Resolving Pregnancy Discrimination Claims

Volume 14, Issue 6
March 30, 2015

In a 6-3 opinion released last week, the United States Supreme Court dealt a blow to employers by inventing new legal requirements making it easier for plaintiffs to have their pregnancy discrimination claims heard by a jury. While the Court's decision in Young v. United Parcel Service, Inc. was expected to bring much-needed clarity to the issue of what the Pregnancy Discrimination Act (PDA) requires of employers, it brought only added confusion and arguably provided pregnant employees the one thing the Court reasoned the PDA was not designed to do: a preferential status as amongst employees who are given workplace accommodations.

The case involved Peggy Young, a part-time driver for UPS who was denied alternative work when she became pregnant and unable to lift parcels weighing up to 70 pounds, an essential function of her job. Pursuant to UPS policy and a collective bargaining agreement, light duty or other alternative work was only offered to three groups of employees: (1) those injured on the job; (2) those with permanent medical impairments under the Americans with Disabilities Act (ADA); and (3) those with temporarily-revoked drivers' certifications issued by the U.S. Department of Transportation. As she did not meet the requirements for alternative work, Young was given an extended leave of absence without pay and eventually lost her medical benefits after exhausting available leave under the Family Medical Leave Act (FMLA).

At issue in the Young case was the proper interpretation of the second clause of the PDA, which amended Title VII of the Civil Rights Act of 1964. In relevant part, the PDA provides that:

(1) the "terms 'because of sex' or 'on the basis of sex' include, but are not limited to, because of or on the basis of pregnancy, childbirth, or related medical conditions;" and

(2) "women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes, including receipt of benefits under fringe benefit programs, as other persons not so affected but similar in their ability or inability to work . . . ."

42 U.S.C. § 2000e(k). Young argued that the second clause of the PDA requires employers to give employees with pregnancy-related work limitations the same accommodations provided to non-pregnant employees with similar inabilities to work, regardless of the underlying cause or other pregnancy-neutral reasons, thereby creating a preferential or so-called "most-favored-nations" status for pregnant employees. UPS maintained that it lawfully offered accommodations to employees under three pregnancy-neutral categories for which Young did qualify. The district court and court of appeals agreed with UPS and concluded that summary judgment in UPS's favor was warranted, negating the need for a jury trial.

The Supreme Court disagreed with both Young's and UPS's positions. It expressed doubt that Congress intended the PDA to give pregnant workers a "most favored nation" status as among employees receiving accommodations, but acknowledged Congress did not specify the particular "other persons" it had in mind as appropriate comparators to pregnant workers. Sidestepping this issue of ambiguity, the Court explained that in cases where: (1) an employee alleging the denial of an accommodation based on disparate treatment due to pregnancy can show she was pregnant, requested a workplace accommodation, her employer denied the accommodation, but her employer accommodated other employees similar in their ability or inability to work; and (2) the employer offers legitimate, nondiscriminatory reasons for denying an accommodation, an employee can still show the employer's reasons were a pretext for unlawful pregnancy discrimination by using a strange, newly-created legal standard.

Under the Court's new standard, a plaintiff can reach a jury by providing sufficient evidence that the employer's policies imposed a "significant burden" on pregnant employees and the employer's justifications for its policies are not "sufficiently strong" to justify the burden on pregnant employees, such that they give rise to an inference of intentional discrimination. In applying the new standard, the Court determined that Young created a genuine issue of material fact as to the existence of a significant burden by providing evidence of UPS's multiple policies, which accommodated a large percentage of non-pregnant employees, while failing to accommodate a large percentage of pregnant employees, such that the case needed to be remanded for further consideration and possible trial.

Where did the Court find the basis for its new legal standard, you ask? In his strongly worded dissenting opinion, Justice Scalia says that the Court's new "significant burden" and "sufficiently strong justification" requirements come from "inventiveness posing as scholarship," which results in an interpretation that is "dubious in principle as it is senseless in practice."

So, what does all this legalese mean? The Young decision calls into question the lawfulness of light duty and other accommodation policies based on pregnancy-neutral reasons (e.g., whether or not the medical impairment is the result of an on-the-job injury or whether or not the underlying condition is a permanent disability covered by the ADA) without invalidating them outright. Thus, the practical impact on employers with such policies is simple, but disheartening: continued uncertainty, increased legal challenges, and a higher chance of jury trials.

At least for the foreseeable future, the Young decision will likely result in what the Court believes Congress did not intend the PDA to do: require employers to give pregnant employees "most-favored-nation" status with respect to the workplace accommodations they afford to non-pregnant employees, irrespective of the reasons or other criteria.

Light duty and accommodation policies that are "pregnancy blind" will not be enough to protect employers from pregnancy-related sex discrimination claims. To minimize potential liability, prudent employers will be forced to carefully reassess the effect their current light duty and accommodation policies have on pregnant employees and take more flexible and thoughtful approaches to providing pregnancy-related accommodations.

KZA Employer Report articles are for general information only; they are not intended and should not be construed to be legal advice. Reading or replying to such articles does not establish an attorney-client relationship. In addition, because the subject matters and applicable laws discussed in Employer Report articles are often in a state of change and not always applicable to every type of business entity or organization, readers should consult with counsel before making decisions based on the same.