While creating a new test for pregnancy discrimination claims in Young v. UPS, the Supreme Court may have confused more than it clarified. Peggy Young delivered packages for UPS. While pregnant, she was unable to lift heavy boxes and sought a light-duty assignment, which UPS denied. The company only allowed light duty for three reasons: an on-the-job injury, a disability under the Americans with Disabilities Act, or if the employee lost the certification necessary to drive. Young sued, claiming UPS violated the Pregnancy Discrimination Act when it refused her accommodation.
The Supreme Court rejected both parties’ proposed outcomes. Instead, the Supreme Court held that the McDonnell Douglas three-step analysis should apply, and walked through the formulation for pregnancy discrimination cases. First, a pregnant employee shows the company denied an accommodation for her, but granted it for non-pregnant employees “similar in their ability or inability to work.” The employer can then counter by showing a legitimate, nondiscriminatory reason for its policy (though claiming it is too expensive or inconvenient to accommodate pregnant employees will “generally” not cut it). Finally, the employee must show the policy imposes a “significant burden on pregnant workers,” which the employer’s legitimate non-discriminatory reason is inadequate to justify and thus creates “an inference of intentional discrimination.” By that standard, Young’s allegations were enough to pass step one and force UPS to justify its policy in the trial court.
The Court’s new “significant burden” test is somewhat undefined; Justice Scalia’s dissent described it as “inventiveness posing as scholarship.” Worse, the typical justifications for an employment policy (expense and convenience) are “generally” off the table. In any case, the Court’s new test should cause employers to review their policies regarding accommodations and their potential impact on pregnant employees. One bright spot for employers is that the Court rejected the EEOC’s relevant guidance for the second time in recent months—this time concluding the agency’s 2014 pregnancy guidelines lacked “consistency,” “thoroughness,” and “consideration” and were therefore unpersuasive. Even so, avoiding pregnancy discrimination will require careful attention as the law and regulations continue to develop.
If you have any questions, please contact Mike Birrer.