I.  Introduction

On March 25, 2015, the Supreme Court, in Young v. UPS, Inc., issued a 6-3 opinion authored by Justice Breyer in which the Court created a new standard to apply to pregnancy discrimination cases, thereby rejecting the interpretations offered by the parties.[i]

II.  Pregnancy Discrimination Act

In 1978, Congress amended Title VII of the Civil Rights Act of 1964 (“Tile VII”) to specify that the prohibition against discrimination “because of” or “on the basis of” sex includes discrimination “because of or on the basis of pregnancy, child birth, or related medical conditions.”  42 U.S.C. § 2000e(k).  The second clause of this Title VII provision further specifies 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.  This amendment came to be known as the Pregnancy Discrimination Act (“PDA”). How the second clause of the PDA should be interpreted would later prove to be the lynchpin of the decision in Young v. UPS.  

III.  Factual Background 

UPS has a provision in its collective bargaining agreement mandating that temporary light-duty work be provided to employees who cannot perform their normal work assignments due to an on-the-job injury (“First Provision”).  In accordance with the First Provision, UPS maintains a policy whereby it accommodated employees suffering from on-the-job injuries with temporary light-duty work (“Policy”).  Additionally, UPS provides accommodations to employees with ADA-qualifying conditions and impairments, regardless of whether those impairments resulted from an on-the-job injury.  Lastly, a second CBA provision requires UPS to accommodate drivers who have lost their commercial DOT certification, due to a failed medical exam, a lost driver’s license, or a motor vehicle accident with temporary “inside” (i.e., non-driving) jobs (“Second Provision”).  Unlike the First Provision, the Second Provision does not require UPS to provide light-duty work because an “inside job” usually involves heavy lifting.  Stated another way, the DOT-disqualified driver must be able to physically perform all the essential functions of the available inside job.  

Peggy Young, the plaintiff, is a former part-time “air driver” for UPS who worked at one of its facilities in Landover, Maryland.  The job description for the driver positions at UPS listed the ability to lift 70 pounds as one of its essential job functions.  But, according to Young, her job generally consisted of delivering only light packages and letters.  As such, Young contends, she “rarely” lifted over 20 pounds as a part of her job.  After becoming pregnant, Young requested and received a brief unpaid leave of absence before requesting a light-duty work accommodation from UPS shortly thereafter.  Young’s request for light-duty work was based on a doctor’s note that she provided, which imposed a 20-pound lifting restriction (and, later, a 10-pound restriction) during the entirety of her pregnancy.  The doctor’s note did not assert that the lifting restriction was the result of any complications with Young’s pregnancy.  Relying on the Policy, as well as Young’s inability to perform the essential job functions of the driver position, UPS denied Young’s request and prohibited her from returning to work in this position.  Young ultimately began an extended leave of absence at that time.  

IV.  Procedural Background

In October 2008, Young sued UPS in the U.S. District Court for the District of Maryland (“District Court”), alleging, in pertinent part, that UPS’s denial of her light-duty accommodation request violated the PDA.  After UPS moved for summary judgment, the District Court, applying the McDonnell Douglas burden-shifting framework, ruled for UPS as to Young’s PDA claim because she had no direct evidence of discrimination, could not identify any comparators treated more favorably than her, and failed to rebut UPS’s non-discriminatory reason for the denial of her accommodation request (i.e., its reliance on the Policy) as pretextual.   

On appeal, the Fourth Circuit Court of Appeals unanimously affirmed the District Court’s summary judgment award in UPS’s favor as to Young’s PDA claim.  In doing so, the Fourth Circuit inter alia rejected Young’s argument that the Policy violated the PDA because it offered light-duty work to some employees -- those injured on the job, suffering from ADA-qualifying impairments, or who had lost their commercial DOT certifications -- but not offering the same accommodation to pregnant employees.  The Fourth Circuit considered Young’s interpretation of the PDA to be a bridge too far because it would essentially grant pregnant employees a “most favored nation” status.  In other words, such an interpretation would give employees with pregnancies the opportunity to receive light-duty work as an accommodation while denying employees with off-the-job injuries the same opportunity.  Young subsequently petitioned the Supreme Court for certiorari.

V.  Oral Arguments     

Samuel R. Bagenstos, a Professor of Law, argued on behalf of Young.  In his opening statement to the Supreme Court, Professor Bagenstos summarized Young’s position as follows:  

If Peggy Young sought an accommodation for a 20-pound lifting restriction that resulted from any number of conditions, whether acquired on or off the job, the summary judgment record reflects that UPS would have granted that accommodation.  But because Peggy Young’s 20-pound lifting restriction resulted from her pregnancy and not from one of those conditions, UPS rejected her request.  That, we submit, is a violation of the second clause of the PDA which, if it means anything, must mean that when an employee seeks an accommodation or benefit due to pregnancy, that she is entitled to the same accommodation that her employer would have given her.

Donald B. Verrilli, Jr., the U.S. Solicitor General, argued on behalf of the federal government as amicus curiae in support of Young.  He argued that Young’s interpretation of the PDA was consistent with the intent of the law, explaining:

The point of the [PDA] is to reduce the number of women who are driven from the workforce or forced to go months without an income as a result of becoming pregnant.  The second clause of the PDA advances that interest in a narrow but important way . . . . We think the one thing an employer can’t do as a result of the second clause is draw distinctions that treat pregnancy-related medical conditions worse than other conditions with comparable effects on work.  It’s that single thing.

Additionally, Solicitor General Verrilli considered it “significant” that the EEOC’s Enforcement Guidance on Pregnancy Discrimination was consistent with Young’s interpretation of the PDA.

Caitlin J. Halligan, who argued on behalf of UPS, asserted that Young’s and the federal government’s interpretation of the second clause was improper because it was inconsistent with the rules of statutory construction:

The reading that we propose is very straightforward.  What Congress said in the second clause, the key words are “the same as other persons.” What “other” means is simply distinct from whatever is mentioned first.  So employers have to treat pregnant employees the same as some distinct group of non-pregnant employees that are similar in their ability or inability to work[,] and that’s exactly what UPS’s [P]olicy does . . . . [Young]’s construction would read the first clause out of the statute entirely.  The words in the first clause are “because of.”  And this Court has consistently understood those words across protected traits to require discrimination -- in an intentional discrimination case, that you have discrimination that is actually motivated by the protected trait.  If the second clause does the work [Young] suggests . . . it would mean that you don’t need to show that the protected trait, pregnancy, actually motivated the adverse treatment.  So [her] construction would read that out of the statute entirely.

VI.  Supreme Court’s Opinion

The Supreme Court rejected the dueling interpretations offered by the parties during oral arguments. Instead, the Court chose “Door Number 3” and created a new standard to apply to pregnancy discrimination cases.  Pursuant to this standard, which continues to apply the traditional McDonnell Douglas burden-shifting framework, an employer may articulate a legitimate, non-discriminatory rationale for its facially-neutral accommodation policy.  But, in response, a pregnant employee can nevertheless use such rationale as evidence of pretext if the employer’s articulated rationale for the accommodation policy is not “sufficiently strong” and imposes a “significant burden” on pregnant workers.  Put another way, the reasoning for the policy must be “sufficiently strong” to justify the “significant burden” placed on the pregnant employee.  Unfortunately, the Supreme Court declined to define these terms with much specificity, so the overall impact of its ruling in Young v. UPS is somewhat hard to predict until the various Federal Circuits facing this issue in the future begin to delineate these standards.   

Applying its newly-fashioned standard to the facts of the case, the Supreme Court reversed the Fourth Circuit’s grant of summary judgment on the basis that Young should be afforded the opportunity to establish a genuine factual dispute over whether the Policy created a significant burden on pregnant employees and whether UPS’s proffered reason for the Policy’s implementation are insufficiently strong to justify this burden.  However, the Court flatly rejected any reliance on the EEOC’s 2014 Enforcement Guidance on Pregnancy Discrimination as misplaced because the EEOC did not articulate its reasoning for the Guidance, and the position that the EEOC took in the Guidance was inconsistent with prior positions taken by the federal government.  Moreover, the Court accepted certiorari in Young v. UPS prior to the issuance of this Guidance. 

VII.  Takeaways

Employers should examine any policies that impact pregnant employees and assess whether those policies impose a “significant burden” on pregnant employees.  If they do, it becomes incumbent upon the employer to analyze whether its reasoning for imposing such a burden is “sufficiently strong” to justify doing so.  While these standards are somewhat nebulous, at least one thing is obvious.  If an employer wants to avoid running afoul of the PDA, they should avoid implementing any policies that offer accommodations to multiple non-pregnant employees, yet fail to extend the same benefit to pregnant employees. 

*Marcus Crider is a partner and chair of the Retail/Hospitality Department at the Waller Law Firm, where he concentrates his practice on the representation of management in labor and employment matters. Marcus received his J.D. in 1996 from the University of Arkansas. He may be reached at marcus.crider@wallerlaw.com or (615) 850-8067.