Monday, March 30, 2015

Pregancy Discrimination

by Michael Dorf

Last week's SCOTUS decision in Young v. UPS featured an interesting disagreement about the scope of the Pregnancy Discrimination Act (PDA) between the majority--Justice Breyer, writing for himself and Justices Ginsburg, Roberts, Sotomayor, and Kagan, with Justice Alito concurring in the jugdment--and the dissent-- Justice Scalia, writing for himself and Justices Kennedy and Thomas. At issue was the second clause of the PDA. The first clause defines discrimination on the basis of preganancy as sex discrimination, and everyone agrees that this clause bars intentional discrimination on the basis of pregnancy. The second clause adds: "and women affected by pregnancy, childbirth, or related medical conditions 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 . . . ." The dissenters thought that this provision merely clarifies the anti-discrimination norm, whereas the majority thought it went beyond, requiring accommodations even absent discriminatory singling out of pregnant women in some circumstances.

My view, for what it's worth, is that in some sense both the majority and the dissent are right. The second clause clarifies, but what it clarifies is that some job criterion can be discriminatory against women or pregnant women even though the criterion doesn't neatly place everyone into either the male or female category, or the non-pregnant or pregnant category.

As both Justice Breyer's majority and Justice Alito's concurring opinion illustrate, the fact that discrimination can be a matter of degree rather than simply on/off calls for some difficult judgments. What happens when, as in Young itself, the employer provides accommodations to some people who are similar in their ability or inability to work as pregnant women, but doesn't provide accommodations to other pepole who are similar, and doesn't provide accommodations to pregnant women, albeit on the basis of some broader supra-category that includes pregnancy but is not pregnancy itself. (UPS accommodated workers with lifting restrictions who were injured on the job, who were entitled to an accommodation under the Americans With Disabilities Act, and those who had lost their Dept of Transportation certificates, but not other workers with lifting restrictions.)

It's worth noting how Young provides an echo of the circumstances that gave rise to the PDA itself. We have a PDA because of the mid-1970s Supreme Court's extreme formalism with respect to the relation between pregnancy discrimination and sex discrimination. In 1974's Geduldig v. Aiello the Court ruled that under the Equal Protection Clause discrimination on the basis of pregancy is not tantamount to sex discrimination because the former distinguishes between "pregnant women and nonpregnant persons. While the first group is exclusively female, the second includes members of both sexes." In 1976, the Court applied the same "logic" in General Electric Co. v. Gilbert to hold that pregnancy discrimination is not sex discrimination for federal statutory purposes. Because Geduldig was a constitutional holding that has not been overruled, it remains the law, but Gilbert was superseded by the PDA.

The argument accepted by the dissenters in Young provides an echo of Gilbert because it too sounds in formalism. UPS isn't discriminating on the basis of pregnancy, the company argued and the dissenters agreed, because UPS distinguishes not between pregnant and nonpregnant persons but between, on the one hand, those pregnant women with lifting restrictions and other workers with lifting restrictions due to circumstances that do not fit within the three favored categories, and, on the other hand, workers with lifting restrictions due to circumstances that do fit within the three favored categories.

To say that the dissenters echo Gilbert is not to say that they are necessarily wrong (although I do think they are wrong). Even the majority Justices were unwilling to say that disadvantaging pregnant women relative to any other workers with similar disabilities--what Justice Breyer called a "most favored employee" apporach--is required by the PDA. But just because the disadvantaged group is part of a larger disadvantaged group that is not defined by pregnancy does not mean that the employer hasn't violated the PDA.

The majority in Young says that a PDA violation will be found under the second clause of the PDA where--in response to a prima facie case by the plaintiff--the employer fails to come forward with a pregnancy-neutral reason (other than cost or convenience) for failing to give pregnant employees the same accommodation as non-pregnant employees who are similarly situated w/r/t their ability or inability to work. To my mind, this is a sound result but the point I would emphasize even more than that is that the majority, like the dissent, ends up reading the PDA's second clause as an elaboration of the anti-discrimination principle articulated in the first clause.

However, the majority has a more expansive conception of discrimination and how one proves it than does the dissent. Indeed, in prior opinions both for the Court and for himself Justice Scalia has strongly resisted any suggestion that an anti-discrimination norm can be advanced by any notion of disparate impact. Note too that while Justice Breyer's majority opinion in Young distinguishes between disparate-treatment and disparate-impact causes of action per prior case law, the actual holding inevitably posits a relation between the two.

12 comments:

Hashim said...

Mike,

I think you're overstating the difference between the majority and the dissent.

On the one hand, the dissent doesn't dispute that there's liability if "the employer fails to come forward with a pregnancy-neutral reason." That's black-letter anti-discrimination law under McDonnell Douglas, wholly apart from second clause of PDA.

On the other hand, majority doesn't dispute that, if the jury finds that an employer has a pregnancy-neutral reason, there's no liability under second clause of PA under a discriminatory-intent theory, regardless of how stupid and indifferent that reason may be (other than cost or convenience).

At most what they disagree about is the relevance of the disparate impact and burden on rebutting the employer's neutral reason *at the summary-judgment stage* and thus getting to a jury. But they entirely agree on the question for the jury.

The only one who reads the PDA's second clause to actually create additional liability is Alito's concurrence, which construes it as a freestanding disparate-impact provision.

Hash

Asher said...

I think I mostly agree with Hashim, and I really don't understand the majority. They say the second clause must do something more than clarify the first, and that something more is say that pregnant women can prove disparate treatment claims, even if a policy doesn't single out pregnant women alone, under McDonnell-Douglas. Doesn't the first clause say that? A woman can prove disparate treatment sex discrmination claims under McDonnell-Douglas, and the first clause defines pregnancy discrimination as sex discrimination. Therefore, the first clause must apply McDonnell-Douglas to pregnancy discrimination disparate treatment claims. The majority seems to think otherwise, but I can't understand why. Then the majority says the second clause was needed to overrule Gilbert's result; the first clause supposedly just overruled its reasoning. Same problem there - if you only had the first clause, Congress would have overruled Gilbert's result, absent some legitimate nondiscriminatory reason for confining accommodations to sickness and accidents, which would save the Gilbert policy under the majority's approach.

Given this, I can't understand what the dissent is disagreeing about, unless it shares the majority's weirdly crabbed reading of the first clause (and thinks the second clause adds nothing to that crabbed reading), which, contrary to Hashim, I think it may. For example, the dissent says Gilbert is wrong under the PDA only because the policy singled out pregnant women alone for disparate treatment, which needn't be the case under McDonnell-Douglas to make out a claim. There are also large parts of the dissent that seem to (and I say seem to because it isn't at all clear) suggest the McDonnell-Douglas framework is a disparate impact test.

Michael C. Dorf said...

Hash: Perhaps I was unclear. I agree that both the majority and dissent read the PDA as barring intentional discrimination rather than disparate impact standing alone. My point was that the majority appears to reject the dissent's view that the second clause only "adds 'clarity'". In fact, the majority also reads the second clause to add clarity, but a different kind of clarity: To the majority, the second clause clarifies that intentional discrimination is to be found in a somewhat broader category of cases than it would be found under the dissent's test.

So read my post as an effort (perhaps unsuccessful) to make sense of the puzzle that Asher notes.

egarber said...
This comment has been removed by the author.
egarber said...

Am I right that the case will now go to court, because of the opening provided by this ruling? So she could still lose, if the company convinces the jury that there was some non-discriminatory reason for the different treatment? And what would a hypothetical reason be?

egarber said...

Is this something the company could say?

"We're not discriminating against you because you're pregnant. We won't give anybody this kind of light duty if the injury / condition occurs away from work. We're doing that as part of our unemployment insurance standards."

Hashim said...

Mike,

It'd help if you identify a fact pattern where the majority would allow a jury to impose liability but the dissent wouldn't. Because I really don't understand what that fact pattern is, either based on the opinions or your posts. (It's not this case, because the majority quite conspicuously declined to opine on whether pltf had adduced enough to rebut pregnancy-neutral justification to get to a jury.)

Both opinions recognize that the relevant question is whether a reasonable jury could find that purportedly neutral justification is a pretext for discrimination. That's essentially a fact-bound evidentiary issue -- at most, the majority is emphasizing that courts should consider disparate impact and burden when assessing whether a reasonable jury could find pretext, whereas the dissent doesn't think it warrants such emphasis. But the dissent isn't arguing such factors are irrelevant to whether a reasonable jury could find pretext.

Michael C. Dorf said...

Eric: The answer to your question is yes, the case now goes to trial.

Hash: I guess I read the majority as a bit closer to Justice Alito than you do. That is, I think that the majority would say that (to quote your first comment) a "stupid and indifferent" reason would be more likely to result in a finding of pregnancy discrimination. We can call that a broader definition of pretext than the dissent uses, if you like. Here's an example based on Johnson Controls: The employer fires employees (w/o offering other temporary work) when the employees' continuation in the job could "harm future generations." In practice, this means firing a very few men with some rare chromosomal disorder that makes their sperm vulnerable to a certain toxin, and also firing pregnant women. Even if not pretextual, this bizarre policy would violate the PDA for the majority but maybe not for the dissent.

Other readers are invited to come up with their own fact patterns.

Hashim said...

Mike,

Like I said, "stupid and indifferent" might get you to a jury for majority but not dissent, but, even under the majority, that won't do the pltf any good *if* the jurors are people like me who recognize that employers can act stupidly and indifferently but w/o intentionally discriminating. That's why Alito's opinion is qualitatively different -- he'd direct a pltfs' verdict for "stupid and indifferent" justifications, whereas majority would still uphold a defense verdict on those facts.

Also, it's not correct that this case is now necessarily going to trial. The majority *did not* rule on whether pltf had adduced enough evidence to survive SJ under the new standard. See pp. 23-24 of op. It left open for CA to rule on remand -- and I think many appellate judges would say that no reasonable jury could reasonably find intentional discrimination on these facts, since ADA exemption is legally required, on-the-job injury is obviously distinguishable, and loss of DOT certification seems idiosyncratic, rather than probative of intentional discrimination.

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