U.S. Supreme Court Creates Burden Shifting Test To Analyze Pregnancy Discrimination Related to Light Duty Policies

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U.S. Supreme Court Creates Burden Shifting Test To Analyze Pregnancy Discrimination Related to Light Duty Policies 

March 2015

On March 25, 2015, in a six-to-three decision, the United States Supreme Court resuscitated a pregnancy bias case in Young v. United Parcel Service, Inc., 575 U.S. ___ (2015). The Supreme Court remanded the case to the lower courts to apply what it deemed to be the correct legal standard to determine whether UPS discriminated against its pregnant employee when it refused to provide her with light duty work.

In the decision, the Court rejected UPS’s proffered argument that to determine whether pregnancy discrimination has occurred, the Pregnancy Discrimination Act (“PDA”) requires courts to compare the accommodations that an employer provides to pregnant employees with accommodations that the employer provides to employees within facially neutral categories, such as those that sustain off-duty injuries. The Court also rejected Young’s argument that the PDA mandates an employer to provide the same accommodations to pregnant employees that it provides to its employees that suffer on-duty injuries. The Court concluded that the law does not grant pregnant employees an unconditional “most-favored-nation” status that would, in effect, relieve the employee protesting pregnancy discrimination of any duty to prove that the alleged discrimination was intentional.

Noticeably unpersuaded by either party’s arguments, the High Court articulated a new burden shifting framework to test complaints of pregnancy discrimination. To prove pregnancy discrimination under the Court’s new legal standard, the employee must prove that: she is in a protected group; the employer denied her a reasonable accommodation in the workplace; and that the employer provided an accommodation for other employees. If the employee successfully establishes these initial points, the employer has the opportunity to demonstrate that its light duty policy has a neutral business rationale. If the employer is successful, the burden would then shift back to the employee to show that the employer’s justification for the policy is merely pretext. To demonstrate pretext, the employee could show that the employer’s policy put a “significant burden” on women in the workplace and that the reasons for the policy were “not sufficiently strong” to justify that burden.

In the dissent, Justice Scalia pointedly noted that by permitting a pregnant employee to show discrimination through a facially neutral work rule permits the employee to establish pretext by a showing of disparate impact instead of intentional disparate treatment. In other words, the Court’s decision seemingly relieves an employee from proving that the alleged pregnancy discrimination was intentional – which is what the majority disavowed as the “most-favored-nation” approach.

Interestingly, the Solicitor General argued to the Court that it should strongly consider and give weight to the 2014 Equal Employment Opportunity Commission (“EEOC”) guidelines concerning the PDA and the application of Title VII and the ADA to pregnant employees, which the EEOC released on the heels of the Court’s decision to grant certiorari in Young v. UPS. The Court concluded that the EEOC’s guidance does not have the “consistency” or the “thoroughness of consideration” that is necessary to give the guidelines persuasive power. Notably, it highlighted that the EEOC did not explain its basis for the latest guidance, nor was the guidance consistent with positions previously taken and advocated for by the government

Keep in mind that in Illinois, certain laws already require public employers to grant pregnant public safety employees a temporary transfer under certain circumstances to a less strenuous or hazardous position during pregnancy upon the advice of a physician. 775 ILCS 5/2-102. In addition, effective January 1, 2015, the Illinois legislature amended the Illinois Human Rights Act to require all employers to provide, among other things, reasonable accommodations to pregnant employees.

In light of the Supreme Court’s recent decision, all employers should continue to address any issues involving pregnant employees carefully, respond to complaints of discrimination and investigate promptly, and train managers and supervisors on the employer’s anti-discrimination policies. Moving forward, employers must pay particular attention to their internal light duty related policies and their potential impact on pregnant employees.

Please contact any Clark Baird Smith LLP attorney to discuss questions related to light duty policies or any matters related to pregnancy accommodations.
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