Young v. United Parcel Service

Pregnancy Discrimination Act

In 1978, the United States Congress passed the Pregnancy Discrimination Act, amending Title VII of the Civil Rights Act of 1964 to "prohibit sex discrimination on the basis of pregnancy," as a direct response to the Court's ruling in General Electric Company v. Gilbert. The Act mandates that employers must treat “women affected by pregnancy . . . the same for all employment-related purposes . . . as other persons not so affected but similar in their ability or inability to work.” However, the Act provides exceptions for a "legitimate, nondiscriminatory, nonpretextual justification for these differences in treatment."

Initial lawsuit

In 2006, Peggy Young was working as a delivery driver for United Parcel Service when she requested time off in order to undergo in vitro fertilization. After becoming pregnant, Young's doctors advised her that "she should not lift more than 20 pounds during the first 20 weeks of her pregnancy or more than 10 pounds thereafter." United Parcel Service (UPS) requires that delivery drivers be able to lift parcels up to 70 pounds (150 pounds with assistance). Young informed UPS that she could not work while under a lifting restriction and stayed home without pay during most of the time she was pregnant. Because of her time away from work, Young lost her employee medical coverage. She then filed suit in federal court, claiming that "UPS acted unlawfully in refusing to accommodate her pregnancy-related lifting restriction."

Decision

Justice Stephen Breyer's majority opinion stated that the key inquiry was "whether the nature of the employer’s policy and the way in which it burdens pregnant women shows that the employer has engaged in intentional discrimination." He provided a balancing test for determining whether employers engaged in intentional discrimination under the terms of the Act. The test provided, "A worker making a claim that her company intentionally treated her differently due to her pregnancy must show that she sought an accommodation, her company refused and then granted accommodations to others suffering from similar restrictions. The company, in turn, can try to show that its reasons were legitimate — but not because it is more expensive or less convenient to add pregnant women to the categories of workers who are accommodated." To determine whether UPS engaged in discrimination under the terms of the new test, the Court remanded the case to the United States Court of Appeals for the Fourth Circuit for further proceedings.

In a concurring opinion, Justice Samuel Alito stated that the wording of one of the clauses of the Act "adds a further requirement of equal treatment irrespective of intent." Therefore, he argued that pregnant employees must be also be compared with other employees performing similar jobs with similar abilities.

In dissent, Justice Antonin Scalia argued that the primary intent of the Act was to clarify that pregnancy discrimination falls under the general definition of sex discrimination and that the majority opinion is instead basically crafting a new law.

Justice Anthony Kennedy wrote a separate dissent, stating that the majority interpreted the Act in a way that conflates "disparate impact" with "disparate treatment" and would result in confusion in litigating pregnancy discrimination cases.

Formal equality

Justice Breyer's opinion adopts a formal equality approach. Formal equality is a theory of feminist thinking based on the idea that men and women are equal in all important aspects and so should be treated the same.

The Act and, more specifically, the statute at issue in the case is built upon the tenets of formal equality. The PDA assumes equal capabilities between men and women: pregnancy will not inhibit a women from carrying out her job requirements (unless, of course, not being pregnant was one of an employer's bona fide occupational qualifications). The PDA likens pregnancy complications to disabilities in its mandate that employers must treat "women affected by pregnancy.... the same for all employment-related purposes.... as other persons not so affected but similar in their ability or inability to work."

The majority opinion follows suit and perpetuates the use of formal equality solutions for problems arising out of the treatment of pregnant women in the workplace. Justice Breyer sets out a new framework under which this type of discrimination will be analyzed. Firstly, the plaintiff must prove that it was likely the discrimination was based on a prohibited Title VII class. Next, the defendant may rebut the plaintiff’s accusations by providing a legitimate, non-discriminatory reason for its perceived discrimination. Lastly, the plaintiff may show the defendant's reasons for discriminating were, in fact, pretextual. That may be proven by showing that the employer's policies placed a "significant burden" on plaintiff's class and the legitimate non-discriminatory reasons were not "sufficiently strong." Such a framework attempts to tease out whether employers are acting in good faith in accommodating pregnant workers with restricted abilities (while realizing realistically that means some pregnant workers may not receive an accommodation), or whether pregnant workers are unfairly excluded from short term disability assignment while others of similar capabilities are given them. Underlying this inquiry is the assumption that women should be receiving the same treatment as others with similar capabilities, a formal equality assumption.

What remains uncertain is how the Fourth Circuit applies the law decided by the Court to the facts of the case. Should the Fourth Circuit broadly accept evidence fulfilling the plaintiff’s showing on the significant burden/sufficiently strong prong, more claims will be successful. However, should the Fourth Circuit maintain a narrow approach to the significant burden/sufficiently strong elements, less claims will be successful as a result of the Court’s liberal interpretation of acceptable employer behavior. Allowing employers to escape liability would widen the gap between pregnancy-related accommodation seekers and non-pregnancy related accommodation seekers, and subsequently diminish the formal equality assumption that underscores the case.

Subordination theory

While the Court uses formal equality logic to guide its decision, does doing so subordinate the interests of women? The subordination theory is a school of feminist thought which analyzes law and society to determine whether women and the interests of women are treated less favorably than others. Based on the theory, the Court's majority opinion is subordinating in the way it refuses to treat pregnant accommodation seekers the same as other accommodation seekers.

In coming to a conclusion about the actual rule of law that future courts will use to evaluate employers' actions, the Supreme Court evaluated the merits of each party's claim as to what the law should be. The plaintiff argued that under the PDA clause at issue, pregnant women should be given an accommodation whenever the employer gives other workers of a similar ability an accommodation. Conversely, the defendant argued that the PDA clause does nothing more than make pregnancy a form of sex discrimination. Since the plaintiff did not fit into any of its neutral categories acceptable accommodation-seekers, the defendant argued, she did not receive the treatment she sought but was not discriminated against on the basis of sex (importantly, the two lower courts had sided with the defendant's argument).

While the opinion is certainly in keeping with the Court's trajectory away from prior decisions that did little to recognize the rights of pregnant women, the Court failed to do all that it could do. The majority opinion's inexplicable refusal to accept the plaintiff's argument and follow the plain text of the statute at issue subordinates pregnant accommodation seekers by treating them less favorably than non-pregnant accommodation seekers. Justice Breyer explains that treating both classes equally would give pregnant women a "most favored nation" status and create a duty on behalf of the employer to accommodate pregnant workers whenever they accommodate non-pregnant workers of similar capabilities. However, why should the law not give pregnant women similar treatment? If the law says to look at (dis)ability as is relates to job duties, what difference does it make that the root of the issue is pregnancy as opposed to a car accident or a bad back? By refusing to hold employers accountable for accommodating pregnant workers the same way it accommodates disabled workers, the Court fails to equally value that group's interests and thus is subordinating.

Practically, this logic may be recognizing the fact that employers should be able to discern between on-duty and off-duty injuries and should be able to treat them differently. The common distinction rewards workers who perform certain types of duties (ultrahazardous jobs) and allows employers to keep costs lower by not having to accommodate everyone with such a request. The majority's opinion is perhaps best conceptualized as splitting the difference between these two important policy issues: supporting the accommodation of pregnant workers but allowing employers to accommodate only some of its workforce.