US Supreme Court Devises Test for Discrimination Claims of Pregnant Workers

Lana ShadwickIn a 6-3 opinion this week, the United States Supreme Court evaluated the Pregnant Workers Fairness Act and devised a new test for determining discrimination claims for employees who become pregnant. America’s highest court reversed a decision by a lower court holding that the Pregnancy Discrimination Act (PDA) does not give pregnant women “a ‘most favored nation’ status.” A United Parcel Service (UPS) worker sued UPS because they did not put her in a lighter-duty position after she became pregnant.

Peggy Young asked UPS to place her in a position where she would not have to lift more than 20 pounds. UPS declined to do so and put her on unpaid leave. Young sued arguing that the company discriminated against her because she was pregnant. She said the company offered accommodations to non-pregnant employees who were injured on the job.  Company policy was that all UPS drivers must have the ability to “[l]ift, lower, push, pull, leverage and manipulate … packages weighing up to 70 pounds” and to “[a]ssist in moving packages, weighing up to 150 pounds.”

The applicable Collective Bargaining Agreement (CBA) provided for temporary alternate work to employees “unable to perform their normal work assignments due to an on-the-job injury.” The CBA provision also requires UPS workers to give an “inside job” to those workers who are able to do the job where they have lost their certification by the Department of Transportation because of a failed medical exam, a lost driver’s license, or involvement in a motor vehicle accident. An “inside job” also requires lifting heavy packages and is not considered “light duty” work.

The question before the United States Supreme Court was whether an employer who provides work accommodations to non-pregnant employees with work limitations, has to provide work accommodations to pregnant employees who are “similar in their ability or inability to work?”

The federal act designed to protect pregnant women against discrimination, mandates that employers treat pregnant women the same “as other persons not so affected but similar in their ability or inability to work.” Congress passed the PDA in 1978 which amended the definition of discrimination on the basis of sex in Title VII of the 1964 Civil Rights Act to include pregnancy as a basis for unlawfully discrimination.

An unanimous decision of a panel of the United States Court of Appeals for the Fourth Circuit had affirmed a dismissal of her race discrimination claim opining that “[o]ne may characterize the UPS policy as insufficiently charitable, but a lack of charity does not amount to discriminatory animus directed at a protected class of employees.”

The Supreme Court did not find that UPS discriminated against the pregnant worker and rejected a “most-favored-nation” approach. The Court refused to follow a 2014 U.S. Equal Employment Opportunity Commission guideline. The Court wrote that the guideline was promulgated after the Court decided to grant review, it took a position on which previous EEOC guidelines were silent; was inconsistent with positions long advocated by the Government; and the EEOC did not explain the basis for its latest guidance.

The decision of the high court found that it is discriminatory to treat women workers differently from other workers at a company who have similar physical limitations. The Court devised a test to guide what a pregnant woman must do to show unlawful discrimination.

The Court found that the Act requires courts to consider the extent to which a company’s policy treats pregnant workers less favorably than it treats nonpregnant workers similar in their ability or inability to work, but includes an analysis of whether the company is acting with any legitimate, nondiscriminatory, nonpretextual justification for this difference in treatment. In short, whether the company’s policy shows that it has engaged in intentional discrimination.

A pregnant worker can make a prima facie case by showing that she is in a protected class (is pregnant), she could not do what is normally required in that job, she asked for a different position at her company as an accommodation, her employer refused to accommodate her, and other workers who were “similar in their ability or inability to work,” received accommodations.

The company “may then seek to justify its refusal to accommodate the plaintiff by relying on ‘legitimate, nondiscriminatory’ reasons for denying her accommodation.” The Court specifically found that the “reason normally cannot consist simply of a claim that it is more expensive or less convenient to add pregnant women to the category of those whom the employer accommodates.” If the company shows that have a “legitimate, nondiscriminatory” reason for its actions, “the plaintiff may in turn show that the employer’s proffered reasons are in fact pretextual.”

A plaintiff can survive dismissal and have their case reach a jury, if they provide “sufficient evidence that the employer’s policies impose a significant burden on pregnant workers, and that the employer’s ‘legitimate, nondiscriminatory’ reasons are not sufficiently strong to justify the burden, but rather—when considered along with the burden imposed—give rise to an inference of intentional discrimination.” The plaintiff must show a genuine issue of material fact as to whether a significant burden exists by providing evidence that the employer accommodates a large percentage of nonpregnant workers while failing to accommodate a large percentage of pregnant workers.

The Court opined that this test, although specifically limited to the PDA, was “consistent with our longstanding rule that a plaintiff can use circumstantial proof to rebut an employer’s apparently legitimate, nondiscriminatory reasons for treating individuals within a protected class differently than those outside the protected class.”

The case has been remanded to determine the issue of whether Young was treated differently from nonpregnant workers who received workplace accommodations. The court must apply the test devised by the Supreme Court in its decision.

Justice Stephen G. Breyer wrote the opinion of the Court, joined by Chief Justice John G. Roberts, Jr., and Justices Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan.  Justice Samuel A. Alito, Jr., filed a concurring opinion.

Justice Antonin Scalia filed a dissenting opinion, in which Justices Anthony M. Kennedy and Justice Clarence Thomas joined. Justice Scalia wrote that the Court “crafts instead a new law that is splendidly unconnected with the text and even the legislative history of the Act.” The Justice charged the Court with using “Inventiveness posing as scholarship—which gives us an interpretation that is as dubious in principle as it is senseless in practice.” The Justice criticized the Court’s decision to use “significant burden” and “sufficiently strong justification” tests.

Justice Kennedy also filed a dissenting opinion which expressed sympathies for the difficulties pregnant women face on the job.  He wrote “There must be little doubt that women who are in the work force—by choice, by financial necessity, or both—confront a serious disadvantage after becoming pregnant. They may find it difficult to continue to work, at least in their regular assignment, while still taking necessary steps to avoid risks to their health and the health of their future children. This is why the difficulties pregnant women face in the workplace are and do remain an issue of national importance.”

Lana Shadwick is a contributing writer and legal analyst for Breitbart Texas. Follow her on Twitter @LanaShadwick2.


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