Young v. United Parcel Service, Inc.: McDonnell Douglas to the rescue?

AuthorCorbett, William R.
PositionAccommodating pregnant workers

The Pregnancy Discrimination Act of 1978 can be interpreted in two obvious ways: one interpretation requires employers to make reasonable accommodations for pregnant employees, and the other does not require such accommodations. In Young v. United Parcel Service, Inc., the Supreme Court held that in some cases employees may be able to prove intentional pregnancy discrimination based on an employer's failure to make accommodations for the pregnant employee when the employer makes accommodations for other disabled employees. Rather than reaching this result by interpreting the statute to require reasonable accommodations, however, the Court held that plaintiffs with "indirect evidence" of discrimination may prove their claim using the pretext analysis developed by the Court in McDonnell Douglas Corp. v. Green. Under this analysis, the Court instructed that, after the first two stages of the analysis, a plaintiff could attempt to prove that the employer's legitimate, nondiscriminatory reason for denying an accommodation for a pregnant employee is pretextual, and this could be proven by demonstrating the significant and unjustified burden the employer's nonaccommodation policy imposes on pregnant employees. Although it seems that the Court resorted to McDonnell Douglas as a compromise to fashion a majority opinion, this essay contends that invocation of the McDonnell Douglas analysis was neither necessary nor prudent. There are two likely ramifications of the Court's use of the McDonnell Douglas analysis. The first is that the Young opinion is likely to resurrect the division of intentional discrimination claims between those based on direct evidence and those based on circumstantial evidence, with the claims in those two categories being analyzed differently. That is a distinction that the Court rejected in 2003 in Desert Palace, Inc. v. Costa. Second, the Court's resort to the McDonnell Douglas analysis refortifies a proof framework which arguably should not have survived the Desert Palace decision and which has constrained the robust development of employment discrimination law by forcing evidence in most cases into proxy questions or categories that have only a tangential relationship to the ultimate issue of discrimination. Too many claims in employment discrimination law are forced into the McDonnell Douglas analysis, which often serves to obscure the actual issues presented. Neither of the foregoing potential ramifications is a good development for employment discrimination law. Young v. UPS could--and should--have been resolved without resort to McDonnell Douglas.

  1. INTRODUCTION

    In Young v. United Parcel Service, Inc., (1) the Supreme Court confronted the meaning of pregnancy discrimination under the Pregnancy Discrimination Act of 1978 (PDA). (2) Specifically, the Court was called upon to decide whether an employer intentionally discriminated against a pregnant employee when that employer made accommodations in the form of temporary job reassignments for other employees who were temporarily unable to perform their jobs due to on-the-job injuries, disabilities covered by the Americans with Disabilities Act, or loss of certification, but did not offer any such reassignment to a pregnant employee who was disqualified from performing her job as a driver due to lifting restrictions. The case seemingly required the Court to interpret the meaning and relationship of the two clauses of the PDA. (3) The Court appeared to be put to the choice of two viable statutory interpretations--one that would require employers in some circumstances to provide reasonable accommodations to pregnant employees if they provide them to similarly situated nonpregnant comparators, and one that would treat pregnancy as merely a subset of sex discrimination and would not require reasonable accommodation regardless of the employer's accommodation of other similarly disabled nonpregnant employees. Remarkably, the Court did not approve either of these viable statutory interpretations. Yet it still found a way to vacate the summary judgment that had been granted in favor of the employer and remand the case. Eschewing the most likely statutory interpretations, (4) the Court was rescued by invoking the much-maligned (5) pretext proof framework developed in 1973 in McDonnell Douglas Corp. v. Green! (6)

    The 6-3 decision by the Court in Young crafts a middle-ground, compromise analysis to keep alive a pregnant plaintiffs opportunity to prove intentional discrimination. It appears that in order to gamer the votes for a majority opinion, the Court found it necessary to summon the McDonnell Douglas analysis, which requires compartmentalizing evidence of discrimination in a three-stage burden-shifting proof structure for which each part and the whole is only loosely related to the ultimate issue of discrimination. The majority's opinion likely will result in pregnancy accommodation claims surviving summary judgment and getting to the fact finder in numerous cases, (7) and consequently may prompt employers to grant accommodations for pregnancy to avoid protracted litigation. (8)

    There is much fodder for discussion in the various opinions in Young. (9) The most discussed issue in the case may prove to be the Court's apparent merger of disparate treatment and disparate impact under the third prong of the McDonnell Douglas analysis, (10) although the Court appears to have adequately cabined its analysis to the small number of pregnancy discrimination claims that are wedged between the two clauses of the PDA." Indeed, the interaction of disparate treatment and disparate impact is an issue that has occupied the Court's attention in some recent cases, including most conspicuously in (2009) in Ricci v. DeStefano, (12)

    I wish to address neither the likely effect of the decision on pregnancy accommodation nor the majority's putative blending of disparate treatment and disparate impact. Rather, I will examine what may be the larger ramifications for employment discrimination law of the majority's flying in McDonnell Douglas to provide the rescue as a compromise rationale for the Young decision. It is unfortunate that the Court resorted to the McDonnell Douglas analysis to achieve this result. The Court suggested that the analysis it crafted likely was limited to the PDA context, (13) and even in that context, may be needed for only a short period of time. (14) Although the Court's variation on the McDonnell Douglas analysis for accommodation claims under the PDA may be supplanted by an analysis under the ADA Amendments Act, as the Young majority suggested, the Court's resort to the McDonnell Douglas pretext analysis is not likely to be insignificant or short-lived.

    Contrary to the Court's assurances regarding the limited significance of the decision, invoking McDonnell Douglas to resolve whether the PDA imposes a duty of reasonable accommodation will likely have two negative ramifications for the larger body of employment discrimination law. First, the Court's use of the pretext analysis will probably rejuvenate the vexatious distinction between employment discrimination claims based on direct evidence and those based on circumstantial or indirect evidence. (15) That distinction is one the Court said it was laying to rest in (2003) in Desert Palace, Inc. v. Costa. (16) Second, the Court has refortified the McDonnell Douglas pretext analysis, which arguably should not have survived Desert Palace. (17) This proof framework, which requires that all evidence of discrimination be crammed into three categories, regardless of the suitability or fit, was featured by the Court in Young as a way to resolve a hard question in employment discrimination law. Neither of these likely ramifications will be a positive development in employment discrimination law, returning the law to nettlesome issues that should have been resolved in Desert Palace. The Court should be retiring McDonnell Douglas rather than invoking it as the panacea for hard issues. If I am correct about the legacy of Young, we will rue the day that the Court unnecessarily summoned McDonnell Douglas to the rescue.

  2. PRELUDE TO YOUNG V. UPS: FROM MCDONNELL DOUGLAS TO DESERT PALACE

    Much of the development of federal employment discrimination law in the courts and many of the Supreme Court's employment discrimination opinions have focused on the proof structures used to analyze individual disparate treatment claims. (18) The Supreme Court created two proof frameworks to analyze such claims. The Court first announced the pretext framework in McDonnell Douglas Corp. v. Green (19) in 1973. The McDonnell Douglas pretext framework is a three-part proof structure with shifting burdens of production. A plaintiff bears the initial burden of production to establish a prima facie case by proving (1) that he belongs to a protected class, (2) that he applied for and was qualified for the job, (3) that despite his qualifications, he was rejected, and (4) that the position remained open and the employer continued to seek applicants having the plaintiffs qualifications. (20) The Court noted in McDonnell Douglas that the elements of the prima facie case will vary with different factual situations. (21) If the plaintiff satisfies the burden of the prima facie case, the burden of production shifts to the defendant-employer to present a legitimate, nondiscriminatory reason for its actions. (22) Finally, if the employer satisfies its burden at the second stage, the burden of production shifts back to the plaintiff to prove that the employer's proffered reason is a pretext for discrimination. (23)

    The McDonnell Douglas opinion announced the proof structure, but the mechanics and meaning of the analysis were not fully developed at that time. The Court found it necessary to explain the meaning and procedural effect of the second and third stages of the analysis in several subsequent cases. These decisions include...

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