United States Supreme Court Creates New Test for Individual Disparate Treatment Cases
| Citation | Vol. 29 No. 4 |
| Publication year | 2015 |
| Author | By Cara Ching-Senaha and Patricia A. Murphy |
By Cara Ching-Senaha and Patricia A. Murphy
Cara Ching-Senaha leads the employment law practice at Moscone Emblidge & Otis LLP. For nearly twenty years, Cara has represented Fortune 100 corporations to closely-held companies across a wide range of industries including retail, manufacturing, high-tech, healthcare (hospitals and biotechnology), hospitality, construction, and food service. She may be reached at: senaha@mosconelaw. com, (415) 362-3599. Patricia Murphy has a law office in San Francisco, where she advises employers regarding federal, state and local employment laws and represents employers in individual, representative and class action cases. She previously led the employment practice group of Moscone Emblidge Sater & Otis LLP and also served as General Counsel for U.S. Wireless Corporation. She may be reached at: pmurphy@pmurphylaw.com, (415) 992-4356.
The United States Supreme Court recently gave birth to a new analytical framework for individual disparate treatment claims brought under the Pregnancy Discrimination Act (PDA).1 Whether and to what extent the Court's holding applies to non-PDA claims remains to be seen.
Under Young v. United Parcel Service, Inc.,2 a pregnant worker who relies on the burden-shifting framework articulated in McDonnell Douglas Corp. v. Green3 may establish pretext "by providing sufficient evidence that the employer's policies impose a significant burden on pregnant workers, and that the employer's 'legitimate, nondiscriminatory' reasons are not sufficiently strong to justify the burden, but, rather—when considered along with the burden imposed—give rise to an inference of intentional discrimination."4
Peggy Young worked as a part-time driver for United Parcel Service (UPS) in Maryland. After several miscarriages, she became pregnant in 2006 and her doctor imposed lifting restrictions.5
Young asked UPS to assign her to light duty consistent with her lifting restrictions. The company's occupational health manager declined her request because she did not qualify for temporary alternate assignment under UPS' light-duty-for-injury policy.6 The policy covered three groups of workers:
- occupationally-injured workers to whom UPS was contractually obliged to provide temporary, alternate work pursuant to a collective bargaining agreement (CBA);7
- workers for whom UPS promised to "make a good faith effort to comply with requests for a reasonable accommodation because of a permanent disability" under the Americans with Disabilities Act (ADA);8 and
- drivers who lost their driving certifications due to a failed medical exam, a lost driver's license, or involvement in a motor vehicle accident, and who otherwise met lifting requirements of the driver job.
These workers were given "inside" work, when available.9
After UPS declined to accommodate Young's lifting restrictions, she was placed on unpaid leave of absence for most of her pregnancy.10
Prior to enactment of the PDA, Title VII of the Civil Rights Act of 1964 (Title VII) did not expressly prohibit pregnancy discrimination. In fact, in 1976, the Supreme Court held in Gilbert that Title VII did not require an employer to provide disability payments for absence due to pregnancy under a benefits plan that provided non-occupational sickness and accident benefits to all employees, because the plan did not "distinguish between pregnant women and others of similar ability or inability because of pregnancy. It distinguished between them on a neutral ground—i.e., it accommodated only sicknesses and accidents, and pregnancy was neither of those."11
In response to the Gilbert decision, Congress in 1978 enacted the PDA, with the "unambiguous[s] intent to overturn" Gilbert. The PDA added two clauses to Title VII's Definitions: (1) "[t]he terms 'because of sex' or 'on the basis of sex' include, but are not limited to, because of or on the basis of pregnancy, childbirth, or related medical conditions"; and, (2) "women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes, including receipt of benefits under fringe benefit programs, as other persons not so affected but similar in their ability or inability to work."12The Young decision focused on interpretation of the second clause.
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In 2008, Young sued UPS for pregnancy discrimination under the PDA.
Courts have recognized two theories of liability for individual claims brought under Title VII: disparate treatment and disparate impact.13 Each theory has different elements of proof, standards of liability, defenses, and remedies.14For reasons that are unexplained in the opinion, Young proceeded on an individual disparate treatment theory only.15
The plaintiff can create a genuine issue of material fact "as to whether a significant burden exists by providing evidence that the employer accommodates a large percentage of nonpregnant workers while failing to accommodate a large percentage of pregnant workers."
Disparate treatment claims have been described as "the most easily understood type of discrimination. The employer simply treats some people less favorably than others because of their race, color, religion, sex, or [other protected characteristic]."16 "Liability in a disparate treatment case depends on whether the protected trait actually motivated the employer's decision."17 Such claims may allege intentional discrimination directed toward an individual or toward a group of individuals.
A plaintiff can prove disparate treatment "either (1) by direct evidence that a workplace policy, practice, or decision relies expressly on a particular characteristic, or (2) by using the burden shifting framework set forth in McDonnell Douglas."18 An example of direct evidence may consist of an expressly discriminatory policy or an admission that the challenged personnel action was based on a protected characteristic. Not surprisingly, direct evidence cases are relatively infrequent; the vast majority of individual disparate treatment cases rely on circumstantial or indirect proof under McDonnell Douglas.
In indirect evidence cases analyzed under McDonnell Douglas, "the plaintiff has the burden of proving by a preponderance of the evidence a prima facie case of discrimination. If the plaintiff succeeds in proving the prima facie case, the burden shifts to the defendant 'to articulate some legitimate, nondiscriminatory reason for the employee's rejection.' Third, should the defendant carry this burden, the plaintiff must then have an opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination."19
In contrast, "disparate impact claims involve employment practices that are facially neutral in their treatment of different groups but that in fact fall more harshly on one group than another and cannot be justified by business necessity."20 "Courts focus on the effects of an employment practice, determining whether they are unlawful irrespective of motivation or intent."21
As direct evidence of disparate treatment discrimination, Young testified that UPSs' capital division manager told her that she was "too much of a liability" while she was pregnant, and that she could "not come back" to work until she was "no longer pregnant."22 In addition, a shop steward testified, "the only light duty requested . . . that became an issue were with women who were pregnant."23
Young also advanced, as indirect evidence, that UPS's policy was a pretext for pregnancy discrimination because, in addition to the three categories of workers who "qualified" for light duty under the policy, UPS sometimes accommodated:
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- workers who, as a result of on-the-job injuries, had similar or more severe work restrictions than she;24 and
- workers with nonoccupational injuries or where the record was unclear whether the injuries were work-related.25
Young claimed that UPS discriminated against pregnant workers because it accommodated numerous "other persons" who were "similar [to her] in their ability or inability to work,"26 but never pregnant workers.27
After discovery, UPS moved for...
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