By Marcia Coyle From Supreme Court Brief

Employers are not required to give pregnant workers the same accommodations that they offer workers with similarly temporary disabilities, but need to establish a legitimate, nondiscriminatory reason for any difference to avoid liability for pregnancy discrimination, the U.S. Supreme Court ruled on Wednesday.

“This may prove a very difficult burden for most employers to meet,” said employment litigator Michael Droke of Dorsey & Whitney. “Employers must be very careful when granting leave requests or making job accommodations, because the company might later be required to justify any difference in treatment for other employees.”

The justices’ 6-3 ruling in Young v. United Parcel Service vacated a decision by the U.S. Court of Appeals for the Fourth Circuit. It gave UPS driver Peggy Young another opportunity to prove that the company violated the federal Pregnancy Discrimination Act when it refused to give her light lifting duty during her pregnancy.

“This is a big win for Peggy Young and other women in the workplace,” said Young’s high court counsel, Samuel Bagenstos of the University of Michigan Law School. “The court recognized that employers can’t put pregnancy in a class by itself. The court recognized that a ruling for UPS would thwart Congress’s intent. And it made clear that employers may not refuse to accommodate pregnant workers based on considerations of cost or convenience when they accommodate other workers.”

At issue was the meaning of the final clause in the Pregnancy Discrimination Act of 1978, which states that discrimination on the basis of pregnancy, childbirth or related medical conditions constitutes illegal sex discrimination, and that women so affected “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.”

UPS provided accommodations only for injuries or illnesses occurring on the job; for workers who qualified under the Americans with Disabilities Act; and for workers who lost their driver’s licenses after driving while intoxicated or for other reasons.

Young argued that the clause meant that she should have the same opportunity for temporary light duty assignment offered to other UPS workers with conditions similarly affecting their ability to work.

UPS countered the clause simply defined sex discrimination to include pregnancy discrimination. The company argued that its distinction between on-the-job and off-the-job injuries or illnesses was “echoed in federal and state law,” was nondiscriminatory and did not single out pregnant women.

Writing for the majority, Justice Stephen Breyer rejected both interpretations. He wrote that Young’s interpretation “proves too much” and would give pregnant employees “most favored nation” status. It would require an employer who provides an accommodation to one or two workers to provide similar accommodations to all pregnant workers, regardless of any other criteria, he said.

UPS’ reading, he continued, would make the clause superfluous, because the first clause in the law already defines sex discrimination as “not limited to, because of or on the basis of pregnancy, childbirth or related medical conditions.”

Instead, Breyer wrote, courts should analyze a pregnant worker’s discrimination claim under the multistep framework announced by the high court in 1973 in McDonnell Douglas Corp. v. Green. Under that framework, she may make out a prima facie case of discrimination 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 burden of making this showing is not onerous,” Breyer wrote. “Neither does it require the plaintiff to show that those whom the employer favored and those whom the employer disfavored were similar in all but the protected ways.”

After a worker makes that showing, he said, the employer may try to justify its refusal to accommodate the worker by providing “legitimate, nondiscriminatory” reasons for the decision. Those reasons cannot normally include that it is less convenient or more expensive to add pregnant workers to the category of those workers who are accommodated.

If the employer does offer a legitimate, nondiscriminatory reason, the worker has the opportunity to show that the reason is a pretext for discrimination.

Young, Breyer said, introduced evidence that UPS had three separate accommodation policies (on-the-job, Americans with Disabilities Act, Department of Transportation).

“Taken together, Young argued, these policies significantly burdened pregnant women,” he wrote. “The Fourth Circuit did not consider the combined effects of these policies, nor did it consider the strength of UPS’ justifications for each when combined. That is, why, when the employer accommodated so many, could it not accommodate pregnant women as well?”

Camille Olson, chairwoman of Seyfarth Shaw’s discrimination litigation practice, said the high court “gave some very clear guidance as to how that analysis will be applied.”

The lower court, which granted summary judgment to UPS, said, as a matter of law, that if the pregnant worker did not fit within the categories of workers being accommodated, there was no affirmative obligation to accommodate that worker, Olson said.

The Supreme Court, she said, is asking, “What’s the justifiable business reason? Don’t tell me: ‘I’m treating them the same.’ What’s reason why you didn’t give it to them? The plaintiff has the opportunity to show the reason is not good enough to overcome the inference of discrimination.”

Justice Samuel Alito Jr. wrote an opinion concurring in the judgment. Justice Antonin Scalia, joined by justices Anthony Kennedy and Clarence Thomas, wrote a dissent. Kennedy also wrote a separate dissenting opinion. Scalia wrote that a pregnant woman denied an accommodation under a policy that does not discriminate against pregnancy has been treated the same as everyone else.

While the case was pending in the high court, UPS changed its policy to offer light duty to pregnant employees beginning in January of this year.

IMAGE: Peggy Young, a Virginia woman who lost her UPS job because she became pregnant, speaks to reporters outside the Supreme Court in Washington, Wednesday, Dec. 3, 2014. AP / Susan Walsh

For more on this story go to: http://www.nationallawjournal.com/supremecourtbrief/id=1202721632181/High-Court-Raises-Burden-for-Employers-on-Pregnancy-Bias#ixzz3Vi2entLk