Wednesday, March 25, 2015

BREAKING: McDonnell Douglas lives! #SCOTUS applies decades-old test to pregnancy accommodation claims

This morning, the U.S. Supreme Court issued one of its most anticipated employment-law rulings of this term, in Young v. United Parcel Service [pdf]. The case asked under what circumstances an employer must provide a workplace accommodation to a pregnant employee.

In its ruling, the court rejected the positions offered by both the employer and the employee.

  • UPS argued that the Pregnancy Discrimination Act requires courts to compare the accommodations an employer provides to pregnant women with the accommodations it provides to others within a facially neutral category (such as those with off-the-job injuries) to determine whether the employer has violated Title VII. The Court rejected this argument as too narrow of a reading of the statute.
  • Young argued that the PDA requires an employer to provide the same accommodations to workplace disabilities caused by pregnancy that it provides to workplace disabilities that have other causes but have a similar effect on the ability to work. The Court rejected this argument because the PDA, on its face, does not grant pregnant workers an unconditional “most-favored-nation” status.

Instead, the Court crafted its own interpretation by applying a modified McDonnell Douglas analysis to pregnancy accommodation claims:

Thus, a plaintiff alleging that the denial of an accommodation constituted disparate treatment under the Pregnancy Discrimination Act’s second clause may make out a prima facie case by showing, as in McDonnell Douglas, 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 her accommodation. But, consistent with the Act’s basic objective, 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 (“similar in their ability or inability to work”) whom the employer accommodates….

If the employer offers an apparently “legitimate, nondiscriminatory” reason for its actions, the plaintiff may in turn show that the employer’s proffered reasons are in fact pretextual. We believe that 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. 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. 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.

What’s the problem with this decision? As Justice Scalia astutely and correctly points out in his dissent, by permitting a pregnant worker to establish pretext by demonstrating a disadvantage presented by the application of a facially neutral work rule, the majority’s opinion allows one to establish intentional disparate treatment by demonstrating a disparate impact. What does this mean for employers? It means that employers must analyze the impact of work rules on pregnant workers and accommodate accordingly. Thus, in application, the majority’s rule grants pregnant workers the unconditional “most-favored-nation” status that the majority says it was rejecting.

My practical take for handling pregnant workers remains unchanged. Unless you can unequivocally demonstrate that you’ve never provided an accommodation to a disabled worker, you should be prepared to offer the same to your pregnant workers.

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