Thursday, March 26, 2015

How does a pregnant employee establish discrimination for failure to accommodate?

Yesterday, the Supreme Court issued its opinion in Young v. UPS, addressing pregnancy accommodation under the Pregnancy Discrimination Act (PDA) provisions of Title VII. In this post, I break down the holding.

Issue

The employee worked as a UPS driver when she became pregnant. She had a lifting restriction and therefore sought an accommodation - light duty work. UPS did not accommodate her. At the time, UPS provided light duty work as an accommodation to employees who (1) were injured on the job; (2) had disabilities and were entitled to accommodations under the ADA; or (3) lost their CDLs due to medical condition or injury.

Justice Breyer -
Public domain as work of federal government.
The PDA prohibits discrimination against pregnant employees, but does not specifically require reasonable accommodations for pregnant employees. However, it does require employers to treat “women affected by pregnancy . . . the same for all employment-related purposes . . . as other persons not so affected but similar in their ability or inability to work.” 42 U. S. C. §2000e(k). So, did UPS have an obligation to provide the pregnant employee with the accommodation?

Majority Holding

Justice Breyer tells us to just apply the McDonnell Douglas burden-shifting framework (well-known to any employment law practitioner). After Young, the prima facie showing under the PDA will look like this:
(1) The employee belongs to the protected class; 
(2) she sought accommodation; 
(3) the employer did not accommodate her; and 
(4) the employer did accommodate others “similar in their ability or inability to work.” 
(modified quote from pp. 20-21). The burden then shifts to the employer to put forward a “legitimate, nondiscriminatory” reason for its actions. The burden then shifts back to the plaintiff to show that the employer’s proffered reasons are in fact pretextual.

So far, this seems like familiar territory for employment lawyers. But how in the heck does that help us resolve this case? Well, here's where things get a little wacky. Justice Breyer announces a new test for how the employee can survive summary judgment on the final turn of the burden-shifting framework:
[T]he 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.
What is a "significant burden"?
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. Here, for example, if the facts are as Young says they are, she can show that UPS accommodates most nonpregnant employees with lifting limitations while categorically failing to accommodate pregnant employees with lifting limitations.
What's a "large percentage'? Not clear. Apparently "most" will suffice.

Okay, and how do we know if the employer's justification is "sufficiently strong"?
Young might also add that the fact that UPS has multiple policies that accommodate nonpregnant employees with lifting restrictions suggests that its reasons for failing to accommodate pregnant employees with lifting restrictions are not sufficiently strong—to the point that a jury could find that its reasons for failing to accommodate pregnant employees give rise to an inference of intentional discrimination.
That's pretty much all we get from this decision. What the lower courts do with it from here is anybody's guess. In this case, the Court vacated the summary judgment entered by the lower court, and the plaintiff's claim has new life.

Justice Scalia's Dissent

Justice Scalia goes off in a scathing, condescending (in other words, classic Scalia) dissent. Where did Justice Breyer's "significant burden" and "sufficiently strong" test come from? According to Justice Scalia, it came from a "wave of the Supreme Wand" and "poof!" a "deliciously incoherent" framework appeared. He also chides Justide Breyer for apparently conflating disparate impact claims with disparate treatment claims by allowing a plaintiff to proceed by showing a facially neutral policy's "substantial burden" on a protected class.