Survey of Developments in Labor and Employment Law
| Publication year | 2021 |
| Pages | 141 |
JEFFREY J. MIRMAN [*]
Since the last survey, there has been a substantial increase in the number of cases filed claiming discrimination under both federal and state law as well as claiming unpaid wages or unpaid overtime under the Fair Labor Standards Act. The EEOC reported a substantial increase in filings over 2014, and filings under the Fair Labor Standards Act were at record levels, up more than 14% from the previous year and more than 20% from 2010.
I. Supreme Court Cases
Four Supreme Court cases merit review in this year's summary.
The first case decided by the Court was Young v. United Parcel Service.[1] By a 6-3 majority, the Court found "the [Pregnancy Discrimination] Act requires courts to consider the extent to which an employer's policy treats pregnant workers less favorably than it treats nonpregnant workers similar in their ability or inability to work. And here – as in all cases in which an individual plaintiff seeks to show disparate treatment through indirect evidence – it requires courts to consider any legitimate, nondiscriminatory, nonpretextual justification for these differences in treatment."[2]
The plaintiff, a part-time UPS driver, was responsible for picking up and delivering packages that arrived the previous night by air carrier. After she became pregnant, her doctor instructed her that she should not lift more than 20 pounds during the first 20 weeks of pregnancy and not more than 10 pounds after 20 weeks. UPS policy required employees to lift up to 70 pounds by themselves and up to 150 pounds with assistance. UPS told the plaintiff she could not work with these restrictions; she stayed home without pay while pregnant and ultimately lost her employee medical coverage.[3]
The plaintiff sued, claiming UPS unlawfully failed to accommodate her pregnancy-related lifting restrictions. She alleged that coworkers were willing to help her with lifting. She complained that UPS accommodated other drivers with similar restrictions. UPS identified those employees who had been accommodated as drivers who had become disabled on the job; those who suffered from a disability covered by the Americans with Disabilities Act, and those who lost their DOT certifications. The plaintiff did not fall within any of these categories; she was treated in the same manner it treated all other employees.[4]
Under these facts, the Court was called upon to interpret the meaning of that sentence within the Pregnancy Discrimination Act which provides: "[W]omen 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."[5] Rejecting the interpretations offered by the plaintiff, the employer, and the EEOC's 2014 Guidelines, the majority concluded that the clause should be interpreted using the McDonnell Douglas test; accordingly, a plaintiff must make out a prima facie case by showing that she belongs to a protected class; that she sought an accommodation; that the employer did not accommodate her; and that the employer accommodated others "similar in the ability to inability to work."[6] Under the facts presented, the Court concluded the plaintiff could make out a prima facie case of discrimination by introducing "evidence that UPS accommodates a large percentage of nonpregnant workers while failing to accommodate a large percentage of pregnant workers."[7] Looking at the employer's policies, the Court concluded that they "significantly burdened pregnant women."[8] The Court further concluded that the employer may, of course, offer a legitimate, nondiscriminatory reason for treating the pregnant employee differently.[9]
Following the Court's decision, the EEOC updated its Pregnancy Discrimination Guidance on June 25, 2015, to mirror the Court's holding. Because the facts in Young predated the Americans with Disabilities Act amendments of 2008, the Court's ruling did not address those amendments, and the EEOC Guidance on those amendments remained unchanged.
In Mach Mining, LLC v. EEOC,[10] the Court considered the EEOC's obligation to engage in conciliation efforts with an employer before bringing suit. The plaintiff filed a charge with the EEOC, claiming that Mach mining failed to hire her and a class of other women as coal miners because of their sex. The EEOC investigated the charge and concluded that there was reasonable cause to believe the company had discriminated against the women. Prior to bringing suit the EEOC sent a letter advising the company of its determination, and invited the company to participate in informal methods of dispute resolution. About a year later, the EEOC informed the company that conciliation efforts had failed, and further efforts would be futile.[11]
After suit was filed, the company defended, inter alia, on the ground that the EEOC had failed to meet its obligation to seek conciliation, and argued that the district court must review whether the EEOC had in fact made a reasonable effort to negotiate a resolution.[12] The Court agreed that the EEOC's efforts to attempt conciliation are subject to judicial review, but that review is limited. The Court concluded that the EEOC, in order to meet its statutory duty to attempt conciliation before bringing suit, "must tell the employer about the claim – essentially, what practice has harmed which person or class – and must provide the employer with an opportunity to discuss the matter in an effort to achieve voluntary compliance. . . . If the Commission does not take those specified actions, it has not satisfied Title VII's requirement to attempt conciliation."[13]
The Court explained why the EEOC's pre-suit conduct is subject to judicial review. Absent such review, the Commission's compliance with the law would rest in the Commission's hands alone. We need not doubt the EEOC's trustworthiness, or its fidelity to law, to shy away from that result. We need only know – and know that Congress knows – that legal lapses and violations occur, and especially so when they have no consequence. That is why this Court has so long applied a strong presumption favoring judicial review of administrative action.[14]
Having concluded that judicial review is appropriate, the Court nevertheless held that the level of review is limited. A district court should do no more than determine if the EEOC afforded the employer an opportunity to discuss and rectify a claimed discriminatory practice.[15] Recognizing that the burden is on the EEOC to prove compliance with the statutory mandate to seek conciliation, the Court held that "[a] sworn affidavit from the EEOC stating that it has performed the obligations noted above but that its efforts have failed will usually suffice to show that it has met the conciliation requirement."[16]
In EEOC v. Abercrombie & Fitch Stores, Inc.,[17] the Court was required to determine whether Title VII's prohibition against an employer's refusal to hire an applicant in order to avoid accommodating a religious practice that could be avoided without undue hardship applied only when the applicant informs the employer of the need for the accommodation.[18] The plaintiff, a practicing Muslim, wears a headscarf. She applied to A&F for a position in one of its retail stores. A&F had a policy that prohibited employees from wearing caps in the workplace, as being too informal for the image the company hoped to project.
Following the interview, the plaintiff was given a rating that qualified her to be hired, but the interviewer, who believed that the plaintiff wore the headscarf because of her faith, thought the headscarf might violate the company's prohibition against the wearing of caps. The company's district manager believed that the headscarf would violate the policy against caps, and rejected the plaintiff's application. The plaintiff sued.
The Court rejected A&F's argument that an applicant for employment cannot show disparate treatment without demonstrating that an employer has "actual knowledge" of an applicant's need for an accommodation.[19] Rather, an applicant must show no more than that the need for an accommodation was a motivating factor in the decision of the employer to reject the application.[20] In short, "an employer may not make an applicant's religious practice, confirmed or otherwise, a factor in employment decisions."[21]Thus, even a neutral policy must give way to the need for a religious accommodation under the statute, even if the employer is not certain that the applicant's religious practice needs accommodation.[22]
In M&G Polymers USA, LLC v. Hobert Freel Tackett,[23]the Court reversed and remanded a Sixth Circuit decision requiring an employer to continue indefinitely retiree health benefits provided entirely at the Company cost that had been provided under expired collective bargaining agreements. The Supreme Court unanimously concluded that in determining whether a collective bargaining agreement binds an employer to pay for retirees' health care benefits for life without change, a district court must apply principles of contract law insofar as those principles are not inconsistent with federal labor law.[24] The Court noted that ERISA requires a different analysis for health and welfare plans than for retirement plans.[25] In rejecting the Sixth Circuit's analysis, the Supreme Court faulted it for (1) deciding that collective bargaining agreements' general durational clauses do not govern retiree benefits;[26] (2) misapplying the principle of contract construction that illusory promises cannot serve as consideration for a provision in a collective bargaining agreement that benefits only part of the represented unit;[27] (3) ignoring the principle that "courts should not construe ambiguous writings to...
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