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.