"LEAST FAVORED NATION": PREGNANCY DISCRIMINATION DISPARATE IMPACT CLAIMS POST-YOUNG.

• Author: Lux, Emma

Abstract

This Article analyzes disparate impact claims under the Pregnancy Discrimination Act (PDA) in light of the Supreme Court's decision in Young v. United Parcel Service, Inc. In Young, the Court interpreted the PDA to provide plaintiffs who bring pregnancy-related disparate treatment claims pursuant to Title VII with additional protections that plaintiffs who bring non-pregnancy-related claims under Title VII do not receive. The Young Court reasoned that this interpretation flowed from the PDA because Congress intended the Act to modify Title VII and wanted to ensure that federal courts would not prematurely dismiss pregnancy discrimination claims, as they historically had done. This Article argues that such reasoning not only provides additional protections for plaintiffs who bring disparate treatment claims, but also furnishes similar safeguards for plaintiffs who bring disparate impact claims. The Article concludes by noting, however, that federal courts have not yet extended such special protection to plaintiffs with pregnancy-related disparate impact claims. The result is that courts still often prematurely dismiss their claims, despite the PDA's purpose and Young's reasoning.

INTRODUCTION

In Young v. United Parcel Service, Inc., the Supreme Court held that the Pregnancy Discrimination Act provides additional protection to plaintiffs bringing intentional pregnancy discrimination claims--protection that exceeds what plaintiffs with Title VII claims outside of the pregnancy discrimination context receive. (1) Prior to Young, many plaintiffs encountered roadblocks at the prima facie stage of pregnancy-related Title VII disparate treatment claims, (2) despite the fact that Congress had passed the Pregnancy Discrimination Act (PDA) nearly four decades earlier in an effort to ease the burden of proof placed on plaintiffs who attempt to raise an inference of intentional discrimination. (3)

Title VII disparate treatment claims require a showing that an employer intentionally discriminated against a member of a protected class. (4) Plaintiffs who furnish direct or circumstantial evidence of intentional discrimination meet their prima facie burden, which shifts the burden to the employer to proffer a legitimate reason for the policy. (5) One way to make the requisite showing of intent at the prima facie stage is to demonstrate that a similarly situated comparator was treated differently, raising an inference of discrimination. (6) However, finding a person who is similar to a pregnant person in their ability or inability to work is "difficult, if not impossible." (7) Some commentators suggested that Young would make disparate treatment pregnancy discrimination cases less onerous at the prima facie stage. (8) Post Young, however, the majority of pregnancy discrimination plaintiffs continue to encounter early dismissals when pursuing a disparate treatment theory. (9)

In light of the continued difficulties associated with challenging pregnancy-related discrimination under a disparate treatment theory of Title VII post-Young, some commentators have expressed hope that the "disparate impact framework ... offers untapped potential for PDA litigants challenging failures to accommodate." (10) In addition to prohibiting disparate treatment, Title VII also prohibits policies with a disparate impact on protected classes, i.e., "practices that are not intended to discriminate but in fact have a disproportionately adverse effect on minorities." (11) To be sure, disparate impact cases under the PDA historically have not been the most successful. (12) Before Young, many courts reasoned that plaintiffs who brought disparate impact claims sought impermissible "preferential" action, and that their claims therefore failed under Title VII as amended by the PDA. (13) Plaintiffs pursuing pregnancy-related disparate impact claims have also struggled to amass statistical evidence of impact, "particularly in fields historically dominated by men." (14)

Nonetheless. Young offered reasons for optimism regarding the potential of the disparate impact theory for PDA plaintiffs challenging denials of light duty accommodations. (15) While Young only concerned a disparate treatment claim, it contained indicia suggesting that employment policies like the one at issue, which only permitted light duty accommodations for employees injured on the job (and several other narrow classes of employees), may also disproportionately impact pregnant employees. (16) During oral argument, Justice Breyer reflected that, had the plaintiff successfully brought a disparate impact claim in that case, it would have been a "beautiful vehicle" for her claim. (17) Even Justice Kennedy, who dissented from the Court's disparate treatment analysis, nonetheless underscored the continued availability of disparate impact claims under the PDA post-Young. (18)

This Article delves into disparate impact claims in the PDA context to determine whether and how Young affected the potential success of such claims. Part I explains the genesis of the PDA. Part II provides an overview of how the Young Court interpreted the PDA's second clause, which states that "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," in the context of disparate treatment claims. (19) Part III then explains why and how that same clause should theoretically modify the burden placed on pregnancy discrimination plaintiffs who bring disparate impact claims, as it does in the disparate treatment context. In Part IV, this Article examines the only post -Young federal appellate decision regarding PDA disparate impact claims, Legg v. Ulster County, (20) and concludes that the Justices in Young may have been overly optimistic about the potential for successful disparate impact challenges under Title VII as amended by the PDA.

1. The Pregnancy Discrimination Act

   Congress passed the PDA to overturn both the holding and reasoning in General Electric Co. v. Gilbert. (21) Gilbert concerned the viability of an employment benefits plan that excluded pregnancy from coverage while providing benefits for conditions causing a similar inability to work. (22) With respect to disparate treatment, the Gilbert majority reasoned that the policy's exclusion of pregnancy was not sex discrimination, but rather discrimination against the identifiable condition of pregnancy. (23) It held that, absent further evidence, the exclusion of pregnancy from a plan which covered other disabilities causing a similar inability to work did not alone raise an inference of intentional discrimination sufficient to satisfy the plaintiff s prima facie burden. (24)

   The Gilbert majority also analyzed the policy through the disparate impact framework. (25) It held that the exclusion of pregnancy from a benefits plan, without more, did not satisfy the plaintiff s prima facie burden of establishing a disparate impact, even though the plan covered other disabilities that, like pregnancy, may cause absences from work or necessitate accommodations. (26) The Court held that, to establish a prima facie burden of disparate impact, a plaintiff would have had to produce additional proof that the "'package [wa]s in fact worth more to men," for instance, by showing that the policy caused comparatively more money to be distributed to men than women, or that it gave a benefit to men which women did not receive. (27)

   With the PDA, Congress sought to overturn the reasoning and holding of Gilbert through two clauses, both of which appear in the Title VII definitions section. (28) The first clause defines the term "because of sex" as used in Title VII to "include ... because of or on the basis of pregnancy, childbirth, or related medical conditions." (29) This first PDA clause, the Supreme Court has found, was intended to supersede the Gilbert Court's reasoning that discrimination against pregnancy was not discrimination against sex, but rather discrimination against the identifiable condition of pregnancy. (30)

   The second clause states, "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." (31) The Supreme Court has stated that this clause was "intended to overrule the holding in Gilbert and to illustrate how discrimination against pregnancy is to be remedied." (32) How exactly the clause should function in order to accomplish that goal, however, has "raise[d] several difficult questions of interpretation." (33)

   The following section provides an overview of how the Supreme Court, in Young v. United Parcel Service, Inc., interpreted the second clause with respect to disparate treatment claims.

2. Young v. UPS: The PDA's Second Clause in Disparate Treatment Cases

   The recent Supreme Court case, Young v. UPS, involved a disparate treatment challenge to UPS's light duty policy. (34) The Young plaintiff was a pregnant UPS worker who sought a light duty accommodation after her physician advised her that she should not lift more than twenty pounds while pregnant. (35) UPS denied her accommodation request because its accommodations policy only permitted light duty for employees with on-the-job injuries, employees who lacked a Department of Transportation certification, and employees covered by the Americans with Disabilities Act. (36) At trial, the plaintiff alleged that UPS intentionally discriminated against her because of pregnancy by using the McDonnell Douglas burden-shifting framework. (37)

   The McDonnell Douglas framework provides a way for disparate treatment claimants to meet their prima facie burden where they lack direct evidence of an employer's discriminatory intent. (38) Under that framework, a plaintiff may raise an...