Is the Supreme Court's recent decision in Young v. United Parcel Service, here, a limited ruling, applicable only in the context of the Pregnancy Discrimination Act (PDA)? Or, does the decision ring in a whole new (and less employer-friendly) era in discrimination case law? It is too early to tell. Allow this explanation for why.
The Supreme Court ruled that UPS may have violated the PDA by not providing a temporary light duty assignment to a pregnant driver who was on temporary, pregnancy-related restrictions. But the Court found that neither party was entitled to their desired interpretation of the PDA.
The pregnant driver, Ms. Young argued that the PDA granted her "most favored employee" status. That is, she argued that the PDA meant her employer had to treat her as favorably as any other driver on similar restrictions, regardless of the reason for that driver's restrictions. UPS argued, however, that it had not violated the PDA because there were several drivers who had similar restrictions who also did not receive light duty assignments, just like Ms. Young, and those employees were not pregnant. The Court ruled, in a 6-3 decision, that neither approach to the PDA was proper. The Court found that the PDA did not grant Ms. Young "most favored employee" status, but also found that, given the facts of this case, Ms. Young had presented enough evidence to present her case to a jury. The Court noted Ms. Young can show that UPS' practice might be pretext for pregnancy discrimination since its practice placed such a high burden on her (and other pregnant employees) and may not be justified since UPS provided light duty assignments to such a large group of drivers with similar restrictions.
Readers will recall that, in this case, the pregnant driver, Ms. Young, had a lifting restriction due to her pregnancy; she asked for a light duty assignment during the time of the restrictions. The request was denied. UPS policy provided that certain restricted drivers could receive light duty assignments but that other restricted drivers could not. The difference in treatment depended upon the source of the restrictions. If the driver's restrictions were related to an on-the-job injury, or related to the loss of Department of Transportation (DOT) certification, or related to an ADA-qualifying disability (which the temporary restriction of a pregnant driver did not qualify for at the time), then the driver could receive a light duty assignment. Other drivers with restrictions that were not within those categories, like Ms. Young, did not receive light duty assignments.
Ms. Young sued under the PDA. She claimed that since some drivers received light duty assignments, UPS was required to give her the same light duty assignments. The lower courts granted UPS summary judgment, dismissing the case without the need for trial. The Supreme Court reversed, and a trial will likely be necessary (if the case is not settled hereafter).
The Supreme Court ruled that the PDA tells employers that it must treat pregnancy-related restrictions in the same manner as it treats non-pregnancy related restrictions. However, as is the case here, the PDA does not clarify for employers how to treat pregnancy-related restrictions when the employer treats some non-pregnancy-related restrictions differently than other non-pregnancy-related restrictions.
UPS answered by explaining that, given this proof, its policy did not make distinctions on the basis of pregnancy, and thus it should not be considered in violation of the PDA. The Court disagreed, reversing judgment for UPS and remanding the case back to the lower courts.
So, what does this mean? There is some good, and some bad, and some ugly.
- The pregnant employee is not entitled to most favored employee status. That is, just because the employee can point to one employee (or presumably some small subset of employees) who are treated better, that proof does not establish pregnancy discrimination.
- The EEOC's guidance, issued during the pendency of the Supreme Court appeal, was not afforded any weight. The EEOC issued guidance noting that under the PDA, an employer cannot refuse to grant light duty assignments to a pregnant employee if such assignments are granted to employees with similar restrictions caused by on-the-job injuries. The Court noted that the EEOC was taking a position that it previously had been silent on and what's more, the EEOC's position was directly contrary to, the government's previous position in similar cases.
- The Court noted that UPS not providing light duty assignments to pregnant employees placed a substantial burden on pregnant employees. The Court further noted that, in light of the large subset of drivers who did receive light duty assignments, it may prove difficult for UPS to justify such burden only on pregnant employees when so many others get better treatment.
- This "justification" analysis for the company's job assignment policy could get courts, and juries, embroiled in analysis of whether a particular policy is reasonable, or wise, or justified. Prior to this decision, for the most part, any such analysis has always been a "business call." Courts have repeatedly ruled that they do not sit as super-HR departments and evaluate whether a policy is wise or advisable.
- The dissent is concerned with this "justification" analysis and whether it rings in a new era in discrimination claims.
- The dissent also expressed concern that the majority appeared to confuse a claim based on a disparate impact theory (a neutral policy has substantial impact on a minority group, established generally by statistics) and Ms. Young's claim before the Court based on a disparate treatment theory (plaintiff claims in a particular decision, she was treated differently than certain comparators outside her minority class).
- The majority attempts to answer the dissent by explaining that the justification analysis applies only to PDA claims, stating that the majority approach is "limited to the PDA context." But the majority then explained that its ruling is consistent with a long-standing case authority that employees can use circumstantial proof to show that a policy, though appearing to be neutral, really is a pretext for discrimination.
- Does the new standard allow an employee to claim some "unjustified burden" that a neutral policy places on a minority and thereby show pretext?
- If so, does this new standard apply only to PDA claims?
- Depending upon how lower courts answer those questions, this case could be very limited in its ruling and context; or it could bring a whole new era to discrimination cases.
- Time will tell.
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