I’ve been meaning to
share my thoughts about the U.S. Supreme Court’s decision in Young v. United Parcel Service, 575 U.S. ___ (Mar. 25, 2015). Work sometimes gets in
the way, of course. But passage of time allowed me to jot down the following
thoughts about what the decision means and its impact on discrimination law.
Young addresses
pregnancy discrimination and how plaintiffs can prove it in a slightly
different context than your typical pregnancy discrimination case. Let’s first
take a look at a district court decision filed on the same day as the Supreme
Court’s decision in Young. In Rogers v. Southeast Psychiatric Services, Inc., 1:14-cv-354 (M.D.
Ala., Mar. 25, 2015). Plaintiff Kimberly Rogers worked as a psychologist for
the defendants’ psychiatric medical practice. Defendants designed and built a
new office building, which included a space specifically for Rogers’ practice.
Within weeks of the move defendants put Rogers’ nameplate on the door of her
new office. Later that same day, Rogers announced she was pregnant. Defendants’
executive committee met one or two days later and decided to terminate Rogers’
employment.
The district court recited the basic McDonnell Douglas framework of analysis:
[T]he
plaintiff first has the burden of establishing a prima facie case of
discrimination, which creates a rebuttable presumption that the employer acted
illegally. "To set out a prima facie case, the plaintiff may show that:
(1) [s]he is a member of a protected class; (2) [s]he was qualified for the
position; (3) [s]he suffered an adverse employment action; and (4) [s]he ***
was treated less favorably than a similarly-situated individual outside h[er]
protected class." (Citations omitted.)
The parties did little in the way of arguing the fourth
element; however, the court noted that “a plaintiff does not have to show a
comparator if she *** presents a convincing mosaic of circumstantial evidence
that would allow a jury to infer intentional discrimination.” (Citations
omitted.)
The court reviewed the evidence and decided that Rogers presented
a prima facie case, there was evidence that defendants' proffered reasons were pretextual and that
summary judgment should be denied.
The evidence in Rogers
can be categorized as a typical pregnancy discrimination case under Title VII.
The same cannot be said of the record before the Supreme Court in Young. Young worked for UPS as a part-time driver. UPS
required drivers like Young to be able to lift parcels weighing up to 70 pounds.
When Young became pregnant her doctor imposed a lifting restriction of 20
pounds. UPS told Young she could not
work while under a lifting restriction. Young consequently stayed home without
pay during most of the time she was pregnant and eventually lost her employee
medical coverage.
Young sued under Title VII’s pregnancy protections claiming
that UPS acted unlawfully in refusing to accommodate her pregnancy-related
lifting restriction. She relied upon Title VII’s requirement that “women
affected by pregnancy *** 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 ***.” Young argued that UPS accommodated non-pregnant drivers
by providing light duty assignments. UPS argued in response that Young was not
similar to the other drivers because they had become disabled on the job, had
lost their Department Transportation certifications, or suffered from a
disability covered by the Americans with Disabilities Act. UPS’s point was that there were plenty of
other non-pregnant drivers who did not receive light duty assignments because
they, like Young, did not fall into one of these three categories.
The plaintiff’s dilemma in Young was that (1) she had been treated the same as a subset
of other persons not so affected [by pregnancy] but similar in their ability or
inability to work as she was; while at the same time (2) she had not
been treated the same as another subset of other persons similar in their
ability or inability to work, but for whom UPS had granted an accommodation
(i.e., other employees with physical limitations). Young, of course, argued
that not having been treated the same as one of the subsets ended the matter.
She posited in her Brief that pregnant workers who are similar in the ability
to work must receive the same treatment even if another subset of nonpregnant
workers do not receive accommodations. The Court paraphrased her argument
thusly: because pregnant and nonpregnant workers were treated differently, “that
is the end of the matter, she must win; there is no need to refer to McDonnell Douglas."
The Court rejected Young’s argument:
The
problem with Young’s approach is that it proves too much. It seems to say that
the statute grants pregnant workers a “most-favored-nation” status. As long as
an employer provides one or two workers with an accommodation—say, those with
particularly hazardous jobs, or those whose workplace presence is particularly
needed, or those who have worked at the company for many years, or those who
are over the age of 55—then it must provide similar accommodations to all
pregnant workers (with comparable physical limitations), irrespective of the
nature of their jobs, the employer’s need to keep them working, their ages, or
any other criteria. *** We doubt that Congress intended to grant pregnant
workers an unconditional most-favored-nation status.
The Court solved the dilemma presented by the record by
returning to the tried and true McDonnell
Douglas framework, modifying it to fit plaintiff’s failure to accommodate
case:
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 [1] she belongs to
the protected class, [2] that she sought accommodation, [3] that the employer
did not accommodate her, and [4] that the employer did accommodate others “similar
in their ability or inability to work.”
Under this analysis it is unnecessary for a plaintiff to
prove she was qualified because in the context of a failure to accommodate disparate
treatment case qualification is irrelevant. Likewise, the Court’s modified
prima facie test dispenses with a showing of an adverse employment action and
replaces it with the requirements of seeking an accommodation and failure to
accommodate, which is in essence the adverse employment action. The employer
can then offer a legitimate, nondiscriminatory reason for its failure to accommodate.
If the employer does so, then the plaintiff must show that the employer’s
proffered reasons are in fact pretextual.
The critical part of the test is and remains what it has
always been in a disparate treatment case – whether the plaintiff’s evidence demonstrates
she was treated less favorably than similarly-situated other employees because
of the protected trait. This, when combined with evidence of pretext, raises an
inference of intentional discrimination and gets a case to the jury.
The Court’s suggestions about how a plaintiff can show
pretext gave rise to the crux of the Justice Scalia’s dissenting opinion. It would have been better if the majority had
made explicit that it was merely suggesting
how plaintiff could establish her case on remand, much as when explicating the
four factors in Daubert (“Many factors will bear on the inquiry, and we do not presume to set out a definitive checklist or test.”) The Court wrote:
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. (Emphasis supplied.)
In my mind the majority was simply suggesting a way for
plaintiff to prove her case. The majority was not creating a rule that must be
satisfied in all cases.
Justice Scalia, joined by Justices Kennedy and Thomas,
agreed with the majority that the key consideration is whether the plaintiff
was treated less favorably than similarly-situated other employees:
[T]he
right reading of the same-treatment clause prohibits practices that
discriminate against pregnant women relative to workers of similar ability or
inability.
The dissenters, however, viewed
what I believe were only suggestions as instead written-in-stone rules emanating
from the statute. Justice Scalia wrote:
It takes
only a couple of waves of the Supreme Wand to produce the desired result.
Poof!: The same-treatment clause means that a neutral reason for refusing to
accommodate a pregnant woman is pretextual if “the employer’s policies impose a
significant burden on pregnant workers.” Poof!: This is so only when the
employer’s reasons “are not sufficiently strong to justify the burden.” How we
got here from the same-treatment clause is anyone’s guess.
Justice Scalia took further exception because the majority proceeded
“to bungle the dichotomy between claims of disparate treatment and claims of
disparate impact.”
In the
topsy-turvy world created by today’s decision, however, a pregnant woman can
establish disparate treatment by showing that the effects of her employer’s
policy fall more harshly on pregnant women than on others (the policies “impose
a significant burden on pregnant workers,”) and are inadequately justified (the
“reasons are not sufficiently strong to justify the burden,”.). (Citations
omitted.)
To be fair, the majority’s decision did not create such a “topsy-turvy
world.” The focus of the majority’s analysis remains on whether the plaintiff
was treated less favorably than nonpregnant employees similar in their ability
or inability to work. Plaintiff on remand still has to convince the district
court judge that a reasonable jury could infer discriminatory motive.
Justice Scalia would have held that “because Young has not
established that UPS’s accommodations policy discriminates against pregnant
women relative to others of similar ability or inability, she has not shown a
violation of the Act’s same treatment requirement.” Justice Scalia’s reference
to UPS’s policy stems from an unjustified revision of plaintiff’s claim into
one of disparate impact. While UPS did
have a policy, plaintiff did not challenge the policy. Her complaint was that
she was not treated the same as other similarly-situated employees who were not
pregnant. Justice’s Scalia conjured a strawman argument by focusing on an
employment policy not under attack. The ultimate issue of intentional
discrimination remains and, therefore, it is entirely possible that plaintiff
will on remand lose by way of summary judgment.
The Court’s decision in Young does not effect a sea-change
in discrimination law. I believe many courts will recognize that any type of
evidence which has a tendency to prove pretext, be it “significant burden” and “insufficiently
strong reasons” evidence or otherwise, can be used to establish intentional
discrimination.
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