The facts of the case are that Peggy Young, a part-time truck driver for UPS, became pregnant and was restricted by her doctor from lifting more than 20 pounds (the standard UPS requirement being 70 pounds). UPS offered Young unpaid pregnancy leave and Young sued under the Pregnancy Discrimination Act (PDA), a 1978 amendment to Title VII. Young argued that employees injured on the job and who were unable to lift 20 pounds were given light duty assignments with pay. The district court awarded UPS summary judgment on grounds that Young could not make out a prima facie case under McDonnell-Douglas rules because those receiving light duty fell into one of three categories that Young did not belong to: (1) on-the-job injury, (2) Department of Transportation (DOT) rules, or (3) ADA categories. The 4th Circuit affirmed the district court, but the Supreme Court, in a 6-3 ruling [see 2015 U.S. LEXIS 2121, 3/25/15], vacated the lower court ruling, effectively, because Young did make out a prima facie disparate treatment claim. Further, UPS had to offer a nondiscriminatory explanation that could not include cost for the accommodation.
One unusual aspect of this ruling is that two of the “conservative” justices (Roberts & Alito) joined Breyer, Ginsburg, Kagan and Sotomayor. Breyer delivered the majority opinion in which Alito agreed in a separate concurrence. Scalia, in a relatively sarcastic opinion, spoke for Kennedy and Thomas, and Kennedy wrote a separate concurrence, probably because he wanted to express his own non-sarcastic opinion. To Illustrate, Scalia wrote:
Faced with two conceivable readings of the Pregnancy Discrimination Act, the Court chooses neither. It crafts instead a new law that is splendidly unconnected with the text and even the legislative history of the Act. To "treat" pregnant workers "the same . . . as other persons," we are told, means refraining from adopting policies that impose "significant burden[s]" upon pregnant women without "sufficiently strong" justifications. Where do the "significant burden" and "sufficiently strong justification" requirements come from? Inventiveness posing as scholarship--which gives us an interpretation that is as dubious in principle as it is senseless in practice.
Keep in mind that it’s the majority opinion that counts. Before turning to that opinion, it’s important to note that Congress wrote the Pregnancy Discrimination Act (PDA) to overturn the Supreme Court’s ruling in GE v. Gilbert (1976) [429 U. S. 125], in which GE offered medical benefits to its non-pregnant employees (or spouses) but not pregnant employees (or spouses). The majority ruling is somewhat parallel to the reasoning in the PDA (e.g., if any employee or spouse receives benefits for other illnesses, the same must apply to pregnancy because it, too, is deemed an illness). The EEOC PDA regulations have referred to this as the “sameness” rule and, in my opinion, this is the rule that guided the majority ruling.
Now on to the majority ruling. UPS argued that Young did not belong to any of the categories relied on by the lower courts, an argument that was rejected by Breyer. Young argued that if "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 non-pregnant workers do not receive accommodations." Breyer also rejected this argument because the PDA does not offer 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.” The Solicitor General piped in that EEOC guidance in 2014 favors the “most favored-nation” argument, to which Breyer responded the guidance was issued after the Supreme Court agreed to hear the case, and because the guidance “lacks the timing, "consistency," and "thoroughness" of "consideration" necessary to "give it power to persuade."
That said, Breyer took a middle path ruling that traditional McDonnell Douglas rules apply:
An individual pregnant worker who seeks to show disparate treatment may make out a primafacie 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, 101 S. Ct. 1089, 67 L. Ed. 2d 207, and with Congress' intent to overrule Gilbert. Pp. 20-23.
To simplify the quote, it means that UPS has to treat Young the same as others who cannot lift 20 pounds. And that, to me, sounds very much like the “sameness” principle. It also sounds like a reasonable accommodation argument that could be made under the ADA.
By Art Gutman, Ph.D., Professor, Florida Institute of Technology
