Wednesday, March 25, 2015

Young v. UPS: SCOTUS Interprets the PDA

ScotusThe Supreme Court issued an opinion today in Young v. UPS, a case concerning whether a pregnant woman denied a light duty accommodation under a policy that accommodated injuries caused on the job, but did not accommodate injuries caused off the job, violated Title VII as amended by the Pregnancy Discrimination Act.

The decision, written by Justice Breyer, and joined by Chief Justice Roberts and Justices Ginsburg, Sotomayor, and Kagan, is fairly complicated, and it will take some time to make sense of. Justice Alito concurred, and Justice Scalia dissented, joined by Justice Thomas and Justice Kennedy. Justice Kennedy also wrote a separate dissent. 

Because I am still working through it, I'll reproduce part of the syllabus here. Note that the Court did not adopt the position urged by any of the parties, but instead adopted a middle ground, modifying the McDonnell Douglas proof structure to make something entirely new. Justice Scalia's dissent argues that this move will merge disparate treatment with disparate impact. I think that may be right, but I disagree that it's a bad thing.

Held: 1. An individual pregnant worker who seeks to show disparate treatment through indirect evidence may do so through application of the McDonnell Douglas framework. Pp. 10–23. (a) The parties’ interpretations of the Pregnancy Discrimination Act’s second clause are unpersuasive. Pp. 12–20. (i) Young claims that as long as “an employer accommodates only a subset of workers with disabling conditions,” “pregnant workers who are similar in the ability to work [must] receive the same treatment even if still other nonpregnant workers do not receive accommodations.” Brief for Petitioner 28. Her reading proves too much. The Court doubts that Congress intended to grant pregnant workers an unconditional “most-favored-nation” status, such that employers who provide one or two workers with an accommodation must provide similar accommodations to all pregnant workers, irrespective of any other criteria. After all, the second clause of the Act, when referring to nonpregnant persons with similar disabilities, uses the open-ended term “other persons.” It does not say that the employer must treat pregnant employees the “same” as “any other persons” who are similar in their ability or inability to work, nor does it specify the particular “other persons” Congress had in mind as appropriate comparators for pregnant workers. Moreover, disparate treatment law normally allows an employer to implement policies that are not intended to harm members of a protected class, even if their implementation sometimes harms those members, as long as the employer has a legitimate, nondiscriminatory, nonpretextual reason for doing so. See, e.g., Burdine, supra, at 252–258. There is no reason to think Congress intended its language in the Pregnancy Discrimination Act to deviate from that approach. Pp. 12–14.

(ii) The Solicitor General argues that the Court should give special, if not controlling, weight to a 2014 Equal Employment Opportunity Commission guideline concerning the application of Title VII and the ADA to pregnant employees. But that guideline lacks the timing, “consistency,” and “thoroughness” of “consideration” necessary to “give it power to persuade.” Skidmore v. Swift & Co., 323 U. S. 134, 140. The guideline was promulgated after certiorari was granted here; it takes a position on which previous EEOC guidelines were silent; it is inconsistent with positions long advocated by the Government; and the EEOC does not explain the basis for its latest guidance. Pp. 14–17.

(iii) UPS claims that the Act’s second clause simply defines sex discrimination to include pregnancy discrimination. But that cannot be right, as the first clause of the Act accomplishes that objective. Reading the Act’s second clause as UPS proposes would thus render the first clause superfluous. It would also fail to carry out a key congressional objective in passing the Act. The Act was intended to overturn the holding and the reasoning of General Elec. Co. v. Gilbert, 429 U. S. 125, which upheld against a Title VII challenge a company plan that provided nonoccupational sickness and accident benefits to all employees but did not provide disability-benefit payments for any absence due to pregnancy. Pp. 17–20.

(b) An individual pregnant worker who seeks to show disparate treatment may make out a prima facie case under the McDonnell Douglas framework by showing that she belongs to the protected class, that she sought accommodation, that the employer did not accommodate her, and that the employer did accommodate others “similar in their ability or inability to work.” The employer may then seek to justify its refusal to accommodate the plaintiff by relying on “legitimate, nondiscriminatory” reasons for denying accommodation.

That 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 employer offers a “legitimate, nondiscriminatory” reason, the plaintiff may show that it is in fact pretextual. The plaintiff may reach a jury on this issue by providing 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 can create 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. This approach is consistent with the longstanding rule that a plaintiff can use circumstantial proof to rebut an employer’s apparently legitimate, nondiscriminatory reasons, see Burdine, supra, at 255, n. 10, and with Congress’ intent to overrule Gilbert. Pp. 20–23.

2. Under this interpretation of the Act, the Fourth Circuit’s judgment must be vacated. Summary judgment is appropriate when there is “no genuine dispute as to any material fact.” Fed. Rule Civ. Proc. 56(a). The record here shows that Young created a genuine dispute as to whether UPS provided more favorable treatment to at least some employees whose situation cannot reasonably be distinguished from hers. It is left to the Fourth Circuit to determine on remand whether Young also created a genuine issue of material fact as to whether UPS’ reasons for having treated Young less favorably than these other nonpregnant employees were pretextual. Pp. 23–24.

MM

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Comments

Just to be clear, we regard this as a big win, not just for Peggy Young but for the law in this area. The McDonnell-Douglas approach wasn't our first choice, but the Court, as you note, modified the McD-D analysis for the pregnancy context in a way that took account of our key arguments. In particular, it noted that ordinary considerations of cost and convenience could not, in light of what Congress was doing in the PDA, constitute legitimate, non-discriminatory reasons in this context. (I think that basically flips Troupe's acceptance of rational discrimination in PDA disparate treatment cases, which is pretty big.) And the Court said that an employer's accommodation of a large percentage of nonpregnant workers, while failing to accommodate a large percentage of pregnant workers, could show pretext here. That was basically our argument, though our first choice was to get there without the prima facie/LNDR/pretext steps. So a solid win.

Posted by: Sam Bagenstos | Mar 25, 2015 11:53:10 AM

Thanks for clarifying, Sam, and for the expert commentary. Congratulations, too!

Posted by: Marcia | Mar 25, 2015 2:29:18 PM

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