Earlier this week, the U.S. Supreme Court declared that a new test applies for pregnancy discrimination. In Young v. UPS, the Supremes decided that in pregnancy discrimination actions under the federal Pregnancy Discrimination Act (“PDA”), the long-standing McDonnell-Douglas burden shifting test does not apply. Employers should ensure their policies, especially any light duty policies, comply with the Young decision.
Prior to the Young decision, a pregnant employee was required to show that she was treated differently from similarly situated employees outside of the protected class in order to establish a claim for discrimination. In Young, UPS permitted light duty for those who were injured on the job, were eligible for protection under the Americans with Disabilities Act or who lost their commercial license. As a result, UPS took the position that there are no similarly situated employees outside of Young’s protected class who were entitled to light duty assignments under UPS’s policy.
Justice Breyer, writing for the majority, however, determined that under the PDA, it was sufficient for the employee to show:
“[S]he 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.’”
Thus, the focus is no longer on the cause of the inability to work, but rather on the impact of the condition on the employee’s ability to work.
Once the employee establishes a prima facie case of discrimination, the burden shifts to the employer to show that there is a legitimate nondiscriminatory reason for the treatment of the employee. Justice Breyer warned, however, that:
“[C]onsistent with the Act’s basic objective, that reason normally cannot consist simply of a claim that it is more expensive or less convenient to add pregnant women to the category of those (‘similar in their ability or inability to work’) whom the employer accommodates.”
If the employer articulates a legitimate nondiscriminatory reason, then the employee may still challenge the reason as a pretext for discrimination, which would require:
“[P]roviding sufficient evidence that the employer’s policies impose a significant burden on pregnant workers, and that the employer’s ‘legitimate, nondiscriminatory’ reasons are not sufficiently strong to justify the burden, but rather—when considered along with the burden imposed—give rise to an inference of intentional discrimination.”
As a result, the Supreme Court helped to clarify the parameters of pregnancy discrimination in accommodation cases. In light of Young, even if your light duty policy seems neutral, it still may be discriminatory if it does not allow for accommodations due to pregnancy that would be permitted to other employees for other reasons. The key is to have a policy that is neutral as to the source of the condition for which the accommodation is sought.