Failure to Accommodate in Disparate Treatment Discrimination Cases — Young v. UPS
I’ve been meaning to share my thoughts about the U.S. Supreme Court’s decision in Young v. United Parcel Service, 575 U.S. ___ (Mar. 25, 2015). Work sometimes gets in the way, of course. But passage of time allowed me to jot down the following thoughts about what the decision means and its impact on discrimination law.
Young addresses pregnancy discrimination and how plaintiffs can prove it in a slightly different context than your typical pregnancy discrimination case. Let’s first take a look at a district court decision filed on the same day as the Supreme Court’s decision in Young. In Rogers v. Southeast Psychiatric Services, Inc., 1:14-cv-354 (M.D. Ala., Mar. 25, 2015). Plaintiff Kimberly Rogers worked as a psychologist for the defendants’ psychiatric medical practice. Defendants designed and built a new office building, which included a space specifically for Rogers’ practice. Within weeks of the move defendants put Rogers’ nameplate on the door of her new office. Later that same day, Rogers announced she was pregnant. Defendants’ executive committee met one or two days later and decided to terminate Rogers’ employment.
The district court recited the basic McDonnell Douglas framework of analysis:
[T]he plaintiff first has the burden of establishing a prima facie case of discrimination, which creates a rebuttable presumption that the employer acted illegally. “To set out a prima facie case, the plaintiff may show that: (1) [s]he is a member of a protected class; (2) [s]he was qualified for the position; (3) [s]he suffered an adverse employment action; and (4) [s]he *** was treated less favorably than a similarly-situated individual outside h[er] protected class.” (Citations omitted.)
The parties did little in the way of arguing the fourth element; however, the court noted that “a plaintiff does not have to show a comparator if she *** presents a convincing mosaic of circumstantial evidence that would allow a jury to infer intentional discrimination.” (Citations omitted.)
The court reviewed the evidence and decided that Rogers presented a prima facie case, there was evidence that defendants’ proffered reasons were pretextual and that summary judgment should be denied.
The evidence in Rogerscan be categorized as a typical pregnancy discrimination case under Title VII. The same cannot be said of the record before the Supreme Court in Young. Young worked for UPS as a part-time driver. UPS required drivers like Young to be able to lift parcels weighing up to 70 pounds. When Young became pregnant her doctor imposed a lifting restriction of 20 pounds. UPS told Young she could not work while under a lifting restriction. Young consequently stayed home without pay during most of the time she was pregnant and eventually lost her employee medical coverage.
Young sued under Title VII’s pregnancy protections claiming that UPS acted unlawfully in refusing to accommodate her pregnancy-related lifting restriction. She relied upon Title VII’s requirement that “women affected by pregnancy *** 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 ***.” Young argued that UPS accommodated non-pregnant drivers by providing light duty assignments. UPS argued in response that Young was not similar to the other drivers because they had become disabled on the job, had lost their Department Transportation certifications, or suffered from a disability covered by the Americans with Disabilities Act. UPS’s point was that there were plenty of other non-pregnant drivers who did not receive light duty assignments because they, like Young, did not fall into one of these three categories.
The plaintiff’s dilemma in Young was that (1) she had been treated the same as a subset of other persons not so affected [by pregnancy] but similar in their ability or inability to work as she was; while at the same time (2) she had notbeen treated the same as another subset of other persons similar in their ability or inability to work, but for whom UPS had granted an accommodation (i.e., other employees with physical limitations). Young, of course, argued that not having been treated the same as one of the subsets ended the matter. She posited in her Brief that pregnant workers who are similar in the ability to work must receive the same treatment even if another subset of nonpregnant workers do not receive accommodations. The Court paraphrased her argument thusly: because pregnant and nonpregnant workers were treated differently, “that is the end of the matter, she must win; there is no need to refer to McDonnell Douglas.”
The Court rejected Young’s argument:
The problem with Young’s approach is that it proves too much. It seems to say that the statute grants pregnant workers a “most-favored-nation” status. As long as an employer provides one or two workers with an accommodation—say, those with particularly hazardous jobs, or those whose workplace presence is particularly needed, or those who have worked at the company for many years, or those who are over the age of 55—then it must provide similar accommodations to all pregnant workers (with comparable physical limitations), irrespective of the nature of their jobs, the employer’s need to keep them working, their ages, or any other criteria. *** We doubt that Congress intended to grant pregnant workers an unconditional most-favored-nation status.
The Court solved the dilemma presented by the record by returning to the tried and true McDonnell Douglas framework, modifying it to fit plaintiff’s failure to accommodate case:
Thus, a plaintiff alleging that the denial of an accommodation constituted disparate treatment under the Pregnancy Discrimination Act’s second clause may make out a prima facie case by showing, as in McDonnell Douglas, 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.”
Under this analysis it is unnecessary for a plaintiff to prove she was qualified because in the context of a failure to accommodate disparate treatment case qualification is irrelevant. Likewise, the Court’s modified prima facie test dispenses with a showing of an adverse employment action and replaces it with the requirements of seeking an accommodation and failure to accommodate, which is in essence the adverse employment action. The employer can then offer a legitimate, nondiscriminatory reason for its failure to accommodate. If the employer does so, then the plaintiff must show that the employer’s proffered reasons are in fact pretextual.
The critical part of the test is and remains what it has always been in a disparate treatment case – whether the plaintiff’s evidence demonstrates she was treated less favorably than similarly-situated other employees because of the protected trait. This, when combined with evidence of pretext, raises an inference of intentional discrimination and gets a case to the jury.
The Court’s suggestions about how a plaintiff can show pretext gave rise to the crux of the Justice Scalia’s dissenting opinion. It would have been better if the majority had made explicit that it was merely suggesting how plaintiff could establish her case on remand, much as when explicating the four factors in Daubert (“Many factors will bear on the inquiry, and we do not presume to set out a definitive checklist or test.”)
The Court wrote:
We believe that the plaintiff may reach a jury on this issue by providing 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.
The plaintiff can create a genuine issue of material fact as to whether a significant burden exists by providing evidence that the employer accommodates a large percentage of nonpregnant workers while failing to accommodate a large percentage of pregnant workers. (Emphasis supplied.)
In my mind the majority was simply suggesting a way for plaintiff to prove her case. The majority was not creating a rule that must be satisfied in all cases.
Justice Scalia, joined by Justices Kennedy and Thomas, agreed with the majority that the key consideration is whether the plaintiff was treated less favorably than similarly-situated other employees:
[T]he right reading of the same-treatment clause prohibits practices that discriminate against pregnant women relative to workers of similar ability or inability.
The dissenters, however, viewed what I believe were only suggestions as instead written-in-stone rules emanating from the statute. Justice Scalia wrote:
It takes only a couple of waves of the Supreme Wand to produce the desired result. Poof!: The same-treatment clause means that a neutral reason for refusing to accommodate a pregnant woman is pretextual if “the employer’s policies impose a significant burden on pregnant workers.” Poof!: This is so only when the employer’s reasons “are not sufficiently strong to justify the burden.” How we got here from the same-treatment clause is anyone’s guess.
Justice Scalia took further exception because the majority proceeded “to bungle the dichotomy between claims of disparate treatment and claims of disparate impact.”
In the topsy-turvy world created by today’s decision, however, a pregnant woman can establish disparate treatment by showing that the effects of her employer’s policy fall more harshly on pregnant women than on others (the policies “impose a significant burden on pregnant workers,”) and are inadequately justified (the “reasons are not sufficiently strong to justify the burden,”.). (Citations omitted.)
To be fair, the majority’s decision did not create such a “topsy-turvy world.” The focus of the majority’s analysis remains on whether the plaintiff was treated less favorably than nonpregnant employees similar in their ability or inability to work. Plaintiff on remand still has to convince the district court judge that a reasonable jury could infer discriminatory motive.
Justice Scalia would have held that “because Young has not established that UPS’s accommodations policy discriminates against pregnant women relative to others of similar ability or inability, she has not shown a violation of the Act’s same treatment requirement.” Justice Scalia’s reference to UPS’s policy stems from an unjustified revision of plaintiff’s claim into one of disparate impact. While UPS did have a policy, plaintiff did not challenge the policy. Her complaint was that she was not treated the same as other similarly-situated employees who were not pregnant. Justice’s Scalia conjured a strawman argument by focusing on an employment policy not under attack. The ultimate issue of intentional discrimination remains and, therefore, it is entirely possible that plaintiff will on remand lose by way of summary judgment.
The Court’s decision in Young does not effect a sea-change in discrimination law. I believe many courts will recognize that any type of evidence which has a tendency to prove pretext, be it “significant burden” and “insufficiently strong reasons” evidence or otherwise, can be used to establish intentional discrimination.