Opinion analysis: Fashioning a remedy for pregnancy bias
on Mar 25, 2015 at 5:28 pm
Analysis
Dissatisfied with every argument made to it, a Supreme Court majority on Wednesday on its own fashioned a new way to test complaints that employers are discriminating against workers who become pregnant. The result, in Young v. United Parcel Service, was a kind of hybrid remedy, judging intentional bias on the one hand and harmful impact on women workers on the other.
It was clear, though, that female workers did not receive legal protection as strong as their advocates sought, but neither did employers get a free pass from claims of pregnancy bias. The six-to-three decision thus looked like a compromise, landing somewhere in the middle.
The Pregnancy Discrimination Act, added to Title VII, the basic civil rights law against workplace bias, was passed by Congress nearly four decades ago to overcome a Supreme Court ruling that allowed employers to treat female workers less favorably just because they became pregnant.
The law has two sections: one says that pregnancy bias is a form of discrimination based on sex, and the second says that female workers who become pregnant must be treated the same as other workers who can handle the same kind of job. Wednesday’s decision was the Court’s attempt to clarify the second sentence, and the result was to give it a separate meaning.
Before announcing what its own view of that section is, the Court rejected, one by one, the alternative readings proposed to it in the case. It turned down the plea of the female UPS driver, Peggy Young, who, with the support of the federal government, argued that female workers should get the same accommodation when they cannot perform their normal jobs as any other worker gets for any other condition that similarly impairs their ability to work.
Calling that a “most-favored-nation” approach of nearly total equality, the Court majority said it had real doubts that Congress intended such a broad grant of equality. And, it added, such an approach would relieve the protesting worker of any duty to prove that the bias against her was intentional — that is, that she was discriminated against on purpose, because of pregnancy. In rejecting that approach, the Court refused to follow the guidelines recently written by the U.S. Equal Employment Opportunity Commission.
Turning to the argument by the package-delivery company, the Court rejected the suggestion that Congress added the second section only to define sex bias to include pregnancy discrimination. That is already done by the Act’s first section, the Court said, and reading the second provision that way would only rule out a workplace practice that singled out pregnant workers, and only them, for disfavored treatment. That reading would not carry out Congress’s aim of giving women more protection than the Supreme Court had previously found in Title VII.
The majority then declared what the section now actually means. It sets up this scenario for a female worker claiming she was the victim of pregnancy bias: she must offer proof that she is in the protected group — that is, those who can become pregnant; that she asked to be accommodated in the workplace when she could not fulfill her normal job; that the employer refused to do so, and that the employer did actually provide an accommodation for others who are just as unable, or unable, to do their work temporarily.
Thus far, the framework is designed to show that the refusal to accommodate was the likely result of intentional bias.
Once the worker has proved those initial points, under the Court’s framework, the employer must then be given a chance to show that its workplace policy was not biased against pregnant workers, but had a neutral business rationale. Then, the worker gets a chance to respond, and can at that point claim that the neutral reason was not a real one, but only a pretext for bias, and can attempt to show that the workplace policy puts a “significant burden” on female workers, and the policy is “not sufficiently strong” to justify that burden. Thus, in the end, the final steps in the inquiry become a form of measuring a negative impact on female workers, rather than an intentionally biased policy.
The Court said, however, that its ruling may not be the last word on the question of pregnancy bias. It noted — without taking any position on its meaning — that Congress in 2008 had expanded another federal law, the Americans with Disabilities Act, to protect workers who have limited ability to do some workplace tasks because of disabilities. EEOC, the Court noted, has interpreted that to mean that it applies even to workers whose disability is temporary and resulted from something that happened outside the workplace — a situation that would appear to include limitations on pregnant workers’ activity.
The Court’s ruling did not put an end to the case of the UPS driver. It sent the case back to lower courts to apply the new framework that the Court had worked out.
Justice Stephen G. Breyer wrote the majority opinion, joined by Chief Justice John G. Roberts, Jr., and Justices Ruth Bader Ginsburg, Elena Kagan, and Sonia Sotomayor. Justice Samuel A. Alito, Jr., wrote separately, giving a different reading to the provision at issue, and supporting only the outcome, not the majority’s reasoning.
Justice Antonin Scalia, joined by Justices Anthony M. Kennedy and Clarence Thomas, wrote a dissenting opinion complaining that the majority had simply made up an analytical framework that had no basis in the law. Justice Kennedy also wrote a separate dissenting opinion, to make sympathetic remarks about the difficulties faced by pregnant women in the workplace.
Wednesday’s decision, in plain English:
A federal civil rights law passed by Congress in 1978 makes it illegal for employers in the private sector to discriminate against their female employees who become pregnant, and thus are unable to do all or some of the demands of their jobs.
A part of that law says that it is a form of pregnancy discrimination if women workers are not treated the same as others on the payroll who have similar limitations in their ability to perform their jobs. That is the part of the law the Court interpreted in its new ruling on Wednesday.
The decision lays out several steps that a female worker must pursue to show that she sought some change in her workplace assignment when she couldn’t do what was required by her normal job, to show that the employer turned her down, and to show that some other workers did get some favorable treatment for their inability to do their normal jobs.
Once a female worker has made those points, the Court declared, the employer gets a chance to show that it did not intend to discriminate against pregnant workers, but had a neutral, business-related decision for its policies. Then, the worker gets the last opportunity, to show that, even though the policy was not intended to be biased, it nevertheless put a significant burden on female workers on the payroll, and the reason for the policy was not strong enough to justify the burden on the women on the staff.
