Supreme Court Issues New Standards for Establishing Pregnancy-Based Employment Discrimination

by Brian S. Kotkin

The U.S. Supreme Court recently issued a new test for determining whether a woman was discriminated against on the basis of her pregnancy. In Young v. UPS, Inc.,[1] the Court said that it was permissible for a Plaintiff alleging workplace discrimination under the Pregnancy Discrimination Act (hereinafter “PDA”) to establish a prima facie case of disparate treatment, by demonstrating that accommodations had been given to employees who were disabled for other reasons, but not to pregnant employees.[2]

Under the PDA, an employer may not discriminate against women “because of or on the basis of pregnancy, childbirth, or related medical conditions.”[3] However, until Young, the exact standard necessary to determine whether an employer had discriminated against an employee on the basis of pregnancy was unclear, with no less than four separate circuit court decisions providing conflicting standards for this determination.[4] For example, in Urbano v. Continental Airlines, Inc.,[5] the Fifth Circuit determined that a Plaintiff could demonstrate a prima facie case for disparate treatment through “direct evidence, statistical proof, or the test established by the Supreme Court” in McDonnell Douglas Corp. v. Green. Compare this with the Sixth Circuit in Reeves v. Swift Transp. Co., which required “direct evidence” of discrimination on the basis of pregnancy, and flatly rejected the McDonnell Douglas standard in disparate treatment cases, only implementing it in disparate impact cases.[6]

The McDonnell Douglas standard, which has traditionally applied to Title VII disparate impact claims, allows an individual to prove discrimination by demonstrating that his or her employer afforded accommodations to others of similar abilities, but which were not afforded to this Plaintiff or others of that class.[7] After that, the burden shifts to the employer to demonstrate that there was a “legitimate, nondiscriminatory reason” for the employer’s actions.[8] If the employer cannot provide such a reason, the requirement that the Plaintiff show a prima facie case of discrimination will be considered met, although if such a reason is provided, the burden falls back again on the Plaintiff to show that the provided rationale is a pretext for discrimination.[9]

In Young, the Supreme Court has taken the odd step of applying the McDonnell Douglas standard not only to disparate impact claims, but also to disparate treatment claims involving pregnancy as well.[10] This means that an employee who believes she has been discriminated against because of her pregnancy may demonstrate disparate treatment by comparing the limitations of her own condition, as well as any accommodations provided by the employer, with those who are “similar in their ability or inability to work.”[11]

This is important, in part, because punitive damages are only available in Title VII claims when the Plaintiff can prove that the discrimination is intentional.[12] Disparate treatment claims carry the element of intent, while disparate impact claims do not.[13] Applying the McDonnell Douglas standard allows the use of circumstantial evidence to prove disparate treatment, and thus the element of intent necessary to obtain punitive damages.[14] This, in turn, will likely discourage employers from engaging in this sort of discriminatory behavior in the future. In short, the Young decision drastically affects how discrimination cases under the PDA will play out, and will likely result in less pregnancy-related discrimination due to a relaxed burden of proof for demonstrating that discrimination, as well as the potential for greater damages.

[1]   No. 12–1226, 2015 WL 1310745 (S. Ct. Mar. 25, 2015).

[2]   Id.

[3]   42 U.S.C. § 2000e(k) (West 2014).

[4]   See, e.g., Urbano v. Continental Airlines, Inc., 138 F.3d 204 (5th Cir. 1998); Reeves v. Swift Transp. Co., 446 F.3d 637 (6th Cir. 2006); Serednyj v. Beverly Healthcare, LLC, 656 F.3d 540 (7th Cir. 2011); Spivey v. Beverly Enterprises, Inc., 196 F.3d 1309 (11th Cir. 1999).

[5]   Urbano, 138 F.3d at 206, citing McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).

[6]   Reeves, 446 F.3d at 642.

[7]   McDonnell Douglas Corp., 411 U.S. at 802-3.

[8]   Id.

[9]   Id.

[10]  Young v. UPS, Inc., No. 12–1226, 2015 WL 1310745, at *16 (S. Ct. March 25, 2015).

[11]  Id. at *15.

[12]  Kolstad v. American Dental Ass’n, 527 U.S. 526, 534-5 (1999).

[13]  Young, 2015 WL 1310745, at *16.

[14]  Id.

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