Young v. United Parcel Service, Inc.

The Pregnancy Discrimination Act makes clear that Title VII's prohibition against sex discrimination applies to discrimination based on pregnancy. It also says that employers must treat "women affected by pregnancy ... the same for all employment-related purposes ... as other persons not so affected but similar in their ability or inability to work." 42 U.S.C. § 2000e(k). We must decide how this latter *1344provision applies in the context of an employer's policy that accommodates many, but not all, workers with nonpregnancy-related disabilities.

In our view, the 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. See McDonnell Douglas Corp. v. Green,411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Ultimately the court must determine whether the nature of the employer's policy and the way in which it burdens pregnant women shows that the employer has engaged in intentional discrimination. The Court of Appeals here affirmed a grant of summary judgment in favor of the employer. Given our view of the law, we must vacate that court's judgment.

I

A

We begin with a summary of the facts. The petitioner, Peggy Young, worked as a part-time driver for the respondent, United Parcel Service (UPS). Her responsibilities included pickup and delivery of packages that had arrived by air carrier the previous night. In 2006, after suffering several miscarriages, she became pregnant. Her doctor told her that she should not lift more than 20 pounds during the first 20 weeks of her pregnancy or more than 10 pounds thereafter. App. 580. UPS required drivers like Young to be able to lift parcels weighing up to 70 pounds (and up to 150 pounds with assistance). Id.,at 578. UPS told Young she could not work while under a lifting restriction. Young consequently stayed home without pay during most of the time she was pregnant and eventually lost her employee medical coverage.

Young subsequently brought this federal lawsuit. We focus here on her claim that UPS acted unlawfully in refusing to accommodate her pregnancy-related lifting restriction. Young said that her co-workers were willing to help her with heavy packages. She also said that UPS accommodated other drivers who were "similar in their ... inability to work." She accordingly concluded that UPS must accommodate her as well. See Brief for Petitioner 30-31.

UPS responded that the "other persons" whom it had accommodated were (1) drivers who had become disabled on the job, (2) those who had lost their Department of Transportation (DOT) certifications, and (3) those who suffered from a disability covered by the Americans with Disabilities Act of 1990 (ADA), 104 Stat. 327, 42 U.S.C. § 12101 et seq.UPS said that, since Young did not fall within any of those categories, it had not discriminated against Young on the basis of pregnancy but had treated her just as it treated all "other" relevant "persons." See Brief for Respondent 34.

B

Title VII of the Civil Rights Act of 1964 forbids a covered employer to "discriminate against any individual with respect to ... terms, conditions, or privileges of employment, because of such individual's ... sex." 78 Stat. 253, 42 U.S.C. § 2000e-2(a)(1). In 1978, Congress enacted the Pregnancy Discrimination Act, 92 Stat. 2076, which added new language to Title VII's definitions subsection. The first clause of the 1978 Act specifies that Title *1345VII's "ter[m] 'because of sex' ... include[s] ... because of or on the basis of pregnancy, childbirth, or related medical conditions." § 2000e(k). The second clause says 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...." Ibid.

This case requires us to consider the application of the second clause to a "disparate-treatment" claim-a claim that an employer intentionally treated a complainant less favorably than employees with the "complainant's qualifications" but outside the complainant's protected class. McDonnell Douglas, supra,at 802, 93 S.Ct. 1817. We have said that "[l]iability in a disparate-treatment case depends on whether the protected trait actually motivated the employer's decision." Raytheon Co. v. Hernandez,540 U.S. 44, 52, 124 S.Ct. 513, 157 L.Ed.2d 357 (2003)(ellipsis and internal quotation marks omitted). We have also made clear that a plaintiff can prove disparate treatment either (1) by direct evidence that a workplace policy, practice, or decision relies expressly on a protected characteristic, or (2) by using the burden-shifting framework set forth in McDonnell Douglas. See Trans World Airlines, Inc. v. Thurston,469 U.S. 111, 121, 105 S.Ct. 613, 83 L.Ed.2d 523 (1985).

In McDonnell Douglas, we considered a claim of discriminatory hiring. We said that, to prove disparate treatment, an individual plaintiff must "carry the initial burden" of "establishing a prima facie case" of discrimination by showing

"(i) that he belongs to a ... minority; (ii) that he applied and was qualified for a job for which the employer was seeking applicants; (iii) that, despite his qualifications, he was rejected; and (iv) that, after his rejection, the position remained open and the employer continued to seek applicants from persons of complainant's qualifications." 411 U.S., at 802, 93 S.Ct. 1817.

If a plaintiff makes this showing, then the employer must have an opportunity "to articulate some legitimate, non-discriminatory reason for" treating employees outside the protected class better than employees within the protected class. Ibid.If the employer articulates such a reason, the plaintiff then has "an opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant [i.e.,the employer] were not its true reasons, but were a pretext for discrimination." Texas Dept. of Community Affairs v. Burdine,450 U.S. 248, 253, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981).

We note that employment discrimination law also creates what is called a "disparate-impact" claim. In evaluating a disparate-impact claim, courts focus on the effectsof an employment practice, determining whether they are unlawful irrespective of motivation or intent. See Raytheon, supra,at 52-53, 124 S.Ct. 513; see also Ricci v. DeStefano,557 U.S. 557, 578, 129 S.Ct. 2658, 174 L.Ed.2d 490 (2009). But Young has not alleged a disparate-impact claim.

Nor has she asserted what we have called a "pattern-or-practice" claim. See Teamsters v. United States,431 U.S. 324, 359, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977)(explaining that Title VII plaintiffs who allege a "pattern or practice" of discrimination may establish a prima facie case by "another means"); see also id.,at 357, 97 S.Ct. 1843(rejecting contention that the "burden of proof in a pattern-or-practice case must be equivalent to that outlined in McDonnell Douglas").

*1346C

In July 2007, Young filed a pregnancy discrimination charge with the Equal Employment Opportunity Commission (EEOC). In September 2008, the EEOC provided her with a right-to-sue letter. See 29 CFR § 1601.28 (2014). Young then filed this complaint in Federal District Court. She argued, among other things, that she could show by direct evidence that UPS had intended to discriminate against her because of her pregnancy and that, in any event, she could establish a prima facie case of disparate treatment under the McDonnell Douglasframework. See App. 60-62.

After discovery, UPS filed a motion for summary judgment. See Fed. Rule Civ. Proc. 56(a). In reply, Young pointed to favorable facts that she believed were either undisputed or that, while disputed, she could prove. They include the following:

1. Young worked as a UPS driver, picking up and delivering packages carried by air. Plaintiff's Memorandum in Opposition to Defendant's Motion for Summary Judgment in No. 08-cv-02586 (D Md.), pp. 3-4 (hereinafter Memorandum).

2. Young was pregnant in the fall of 2006. Id.,at 15-16.

3. Young's doctor recommended that she "not be required to lift greater than 20 pounds for the first 20 weeks of pregnancy and no greater than 10 pounds thereafter." App. 580; see also Memorandum 17.

4. UPS required drivers such as Young to be able to "[l]ift, lower, push, pull, leverage and manipulate ... packages weighing up to 70 pounds" and to "[a]ssist in moving packages weighing up to 150 pounds." App. 578; see also Memorandum 5.

5. UPS' occupational health manager, the official "responsible for most issues relating to employee health and ability to work" at Young's UPS facility, App. 568-569, told Young that she could not return to work during her pregnancy because she could not satisfy UPS' lifting requirements, see Memorandum 17-18; 2011 WL 665321, *5 (D.Md., Feb. 14, 2011).

6. The manager also determined that Young did not qualify for a temporary alternative work assignment. Ibid.; see also Memorandum 19-20.

7. UPS, in a collective-bargaining agreement, had promised to provide temporary alternative work assignments to employees "unable to perform their normal work assignments due to an on-the-jobinjury." App. 547 (emphasis added); see also Memorandum 8, 45-46.

8. The collective-bargaining agreement also provided that UPS would "make a good faith effort to comply ... with requests for a reasonable accommodation because of a permanent disability" under the ADA. App. 548; see also Memorandum 7.

9. The agreement further stated that UPS would give "inside" jobs to drivers who had lost their DOT certifications because of a failed medical exam, a lost driver's license, or involvement in a motor vehicle accident. See App. 563-565; Memorandum 8.

10. When Young later asked UPS' Capital Division Manager to accommodate her disability, he replied that, while she was pregnant, she was "too much of a liability" and could "not come back" until she " 'was no longer pregnant.' " Id.,at 20.

11. Young remained on a leave of absence (without pay) for much of her pregnancy. Id.,at 49.

*134712. Young returned to work as a driver in June 2007, about two months after her baby was born. Id.,at 21, 61.

As direct evidence of intentional discrimination, Young relied, in significant part, on the statement of the Capital Division Manager (10 above). As evidence that she had made out a prima facie case under McDonnell Douglas,Young relied, in significant part, on evidence showing that UPS would accommodate workers injured on the job (7), those suffering from ADA disabilities (8), and those who had lost their DOT certifications (9). That evidence, she said, showed that UPS had a light-duty-for-injury policy with respect to numerous "other persons," but not with respect to pregnant workers. See Memorandum 29.

Young introduced further evidence indicating that UPS had accommodated several individuals when they suffered disabilities that created work restrictions similar to hers. UPS contests the correctness of some of these facts and the relevance of others. See Brief for Respondent 5, 6, 57. But because we are at the summary judgment stage, and because there is a genuine dispute as to these facts, we view this evidence in the light most favorable to Young, the nonmoving party, see Scott v. Harris,550 U.S. 372, 380, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007):

13. Several employees received accommodations while suffering various similar or more serious disabilities incurred on the job. See App. 400-401 (10-pound lifting limitation); id.,at 635 (foot injury); id.,at 637 (arm injury).

14. Several employees received accommodations following injury, where the record is unclear as to whether the injury was incurred on or off the job. See id.,at 381(recurring knee injury); id.,at 655 (ankle injury); id.,at 655 (knee injury); id.,at 394& minus;398 (stroke); id.,at 425, 636-637 (leg injury).

15. Several employees received "inside" jobs after losing their DOT certifications. See id.,at 372 (DOT certification suspended after conviction for driving under the influence); id.,at 636, 647 (failed DOT test due to high blood pressure); id.,at 640-641 (DOT certification lost due to sleep apneadiagnosis).

16. Some employees were accommodated despite the fact that their disabilities had been incurred off the job. See id.,at 446 (ankle injury); id.,at 433, 635-636 (cancer).

17. According to a deposition of a UPS shop steward who had worked for UPS for roughly a decade, id.,at 461, 463, "the only light duty requested [due to physical] restrictions that became an issue" at UPS "were with women who were pregnant," id.,at 504.

The District Court granted UPS' motion for summary judgment. It concluded that Young could not show intentional discrimination through direct evidence. 2011 WL 665321, *10-*12. Nor could she make out a prima facie case of discrimination under McDonnell Douglas. The court wrote that those with whom Young compared herself-those falling within the on-the-job, DOT, or ADA categories-were too different to qualify as "similarly situated comparator [s]." 2011 WL 665321, *14. The court added that, in any event, UPS had offered a legitimate, nondiscriminatory reason for failing to accommodate pregnant women, and Young had not created a genuine issue of material fact as to whether that reason was pretextual. Id.,at *15.

On appeal, the Fourth Circuit affirmed. It wrote that "UPS has crafted a pregnancy-blind policy" that is "at least facially a *1348'neutral and legitimate business practice,' and not evidence of UPS's discriminatory animus toward pregnant workers." 707 F.3d 437, 446 (2013). It also agreed with the District Court that Young could not show that "similarly-situated employees outside the protected class received more favorable treatment than Young." Id.,at 450. Specifically, it believed that Young was different from those workers who were "disabled under the ADA" (which then protected only those with permanent disabilities) because Young was "not disabled"; her lifting limitation was only "temporary and not a significant restriction on her ability to perform major life activities." Ibid.Young was also different from those workers who had lost their DOT certifications because "no legal obstacle stands between her and her work" and because many with lost DOT certifications retained physical (i.e., lifting) capacity that Young lacked. Ibid.And Young was different from those "injured on the job because, quite simply, her inability to work [did] not arise from an on-the-job injury." Id.,at 450-451. Rather, Young more closely resembled "an employee who injured his back while picking up his infant child or ... an employee whose lifting limitation arose from her off-the-job work as a volunteer firefighter," neither of whom would have been eligible for accommodation under UPS' policies. Id.,at 448.

Young filed a petition for certiorari essentially asking us to review the Fourth Circuit's interpretation of the Pregnancy Discrimination Act. In light of lower-court uncertainty about the interpretation of the Act, we granted the petition. Compare Ensley-Gaines v. Runyon,100 F.3d 1220, 1226 (C.A.6 1996), with Urbano v. Continental Airlines, Inc.,138 F.3d 204, 206-208 (C.A.5 1998); Reeves v. Swift Transp. Co.,446 F.3d 637, 640-643 (C.A.6 2006); Serednyj v. Beverly Healthcare, LLC,656 F.3d 540, 547-552 (C.A.7 2011); Spivey v. Beverly Enterprises, Inc.,196 F.3d 1309, 1312-1314 (C.A.11 1999).

D

We note that statutory changes made after the time of Young's pregnancy may limit the future significance of our interpretation of the Act. In 2008, Congress expanded the definition of "disability" under the ADA to make clear that "physical or mental impairment[s] that substantially limi[t]" an individual's ability to lift, stand, or bend are ADA-covered disabilities. ADA Amendments Act of 2008, 122 Stat. 3555, codified at 42 U.S.C. §§ 12102(1)-(2). As interpreted by the EEOC, the new statutory definition requires employers to accommodate employees whose temporary lifting restrictions originate off the job. See 29 CFR pt. 1630, App., § 1630.2(j)(1)(ix). We express no view on these statutory and regulatory changes.

II

The parties disagree about the interpretation of the Pregnancy Discrimination Act's second clause. As we have said, see Part I-B, supra, the Act's first clause specifies that discrimination " 'because of sex' " includes discrimination "because of ... pregnancy." But the meaning of the second clause is less clear; it adds: "[W]omen affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes ... as other personsnot so affected but similar in their ability or inability to work." 42 U.S.C. § 2000e(k)(emphasis added). Does this clause mean that courts must compare workers only in respect to the work limitations that they suffer? Does it mean that courts must ignore all other similarities or differences between pregnant and nonpregnant workers? Or does it mean that courts, when deciding who the relevant "other persons"

*1349are, may consider other similarities and differences as well? If so, which ones?

The differences between these possible interpretations come to the fore when a court, as here, must consider a workplace policy that distinguishes between pregnant and nonpregnant workers in light of characteristics not related to pregnancy. Young poses the problem directly in her reply brief when she says that the Act requires giving "the same accommodations to an employee with a pregnancy-related work limitation as it would give that employeeif her work limitation stemmed from a different cause but had a similar effect on her inability to work." Reply Brief 15. Suppose the employer would not give "that [pregnant] employee" the "same accommodations" as another employee, but the employer's reason for the difference in treatment is that the pregnant worker falls within a facially neutral category (for example, individuals with off-the-job injuries). What is a court then to do?

The parties propose very different answers to this question. Young and the United States believe that the second clause of the Pregnancy Discrimination Act "requires an employer to provide the same accommodations to workplace disabilities caused by pregnancy that it provides to workplace disabilities that have other causes but have a similar effect on the ability to work." Brief for Petitioner 23. In other words, Young contends that the second clause means that whenever "an employer accommodates only a subset of workers with disabling conditions," a court should find a Title VII violation if "pregnant workers who are similar in the ability to work" do not "receive the same [accommodation] even if still other non-pregnant workers do not receive accommodations."Id.,at 28.

UPS takes an almost polar opposite view. It contends that the second clause does no more than define sex discrimination to include pregnancy discrimination. See Brief for Respondent 25. Under this view, courts would compare the accommodations an employer provides to pregnant women with the accommodations it provides to others withina facially neutral category (such as those with off-the-job injuries) to determine whether the employer has violated Title VII. Cf. post,at 1362 - 1363 (SCALIA, J., dissenting) (hereinafter the dissent) (the clause "does not prohibit denying pregnant women accommodations ... on the basis of an evenhanded policy").

A

We cannot accept either of these interpretations. Young asks us to interpret the second clause broadly and, in her view, literally. As just noted, she argues that, as long as "an employer accommodates only a subset of workers with disabling conditions," "pregnant workers who are similar in the ability to work [must] receive the same treatment even if still other nonpregnant workers do not receive accommodations." Brief for Petitioner 28. She adds that, because the record here contains "evidence that pregnant and nonpregnant workers were not treated the same," that is the end of the matter, she must win; there is no need to refer to McDonnell Douglas. Brief for Petitioner 47.

The problem with Young's approach is that it proves too much. It seems to say that the statute grants pregnant workers a "most-favored-nation" status. As long as an employer provides one or two workers with an accommodation-say, those with particularly hazardous jobs, or those whose workplace presence is particularly needed, or those who have worked at the company for many years, or those who are over the age of 55-then it must provide similar accommodations to allpregnant *1350workers (with comparable physical limitations), irrespective of the nature of their jobs, the employer's need to keep them working, their ages, or any other criteria.

Lower courts have concluded that this could not have been Congress' intent in passing the Pregnancy Discrimination Act. See, e.g.,Urbano,138 F.3d, at 206-208; Reeves,446 F.3d, at 641; Serednyj,656 F.3d, at 548-549; Spivey,196 F.3d, at 1312-1313. And Young partially agrees, for she writes that "the statute does not require employers to give" to "pregnant workers all of the benefits and privileges it extends to other" similarly disabled "employees when those benefits and privileges are ... based on the employee's tenure or position within the company." Reply Brief 15-16; see also Tr. of Oral Arg. 22 ("[S]eniority, full-time work, different job classifications, all of those things would be permissible distinctions for an employer to make to differentiate among who gets benefits").

Young's last-mentioned concession works well with respect to seniority, for Title VII itself contains a seniority defense, see 42 U.S.C. § 2000e-2(h). Hence, seniority is not part of the problem. But otherwise the most-favored-nation problem remains, and Young's concession does not solve it. How, for example, should a court treat special benefits attached to injuries arising out of, say, extra-hazardous duty? If Congress intended to allow differences in treatment arising out of special duties, special service, or special needs, why would it not also have wanted courts to take account of differences arising out of special "causes"-for example, benefits for those who drive (and are injured) in extrahazardous conditions?

We agree with UPS to this extent: We doubt that Congress intended to grant pregnant workers an unconditional most-favored-nation status. The language of the statute does not require that unqualified reading. The second clause, when referring to nonpregnant persons with similar disabilities, uses the open-ended term "other persons." It does not say that the employer must treat pregnant employees the "same" as "any other persons" (who are similar in their ability or inability to work), nor does it otherwise specify which other persons Congress had in mind.

Moreover, disparate-treatment law normally permits an employer to implement policies that are not intended to harm members of a protected class, even if their implementation sometimes harms those members, as long as the employer has a legitimate, nondiscriminatory, nonpretextual reason for doing so. See, e.g., Raytheon,540 U.S., at 51-55, 124 S.Ct. 513;Burdine,450 U.S., at 252-258, 101 S.Ct. 1089; McDonnell Douglas,411 U.S., at 802, 93 S.Ct. 1817. There is no reason to believe Congress intended its language in the Pregnancy Discrimination Act to embody a significant deviation from this approach. Indeed, the relevant House Report specifies that the Act "reflect[s] no new legislative mandate." H.R.Rep. No. 95-948, pp. 3-4(1978), 1978 U.S.C.C.A.N. 4749, 4751 (hereinafter H.R. Rep.). And the Senate Report states that the Act was designed to "reestablis[h] the law as it was understood prior to" this Court's decision in General Electric Co. v. Gilbert, 429 U.S. 125, 97 S.Ct. 401, 50 L.Ed.2d 343 (1976). S.Rep. No. 95-331, p. 8(1978) (hereinafter S. Rep.). See Gilbert, supra,at 147, 97 S.Ct. 401(Brennan, J., dissenting) (lower courts had held that a disability plan that compensates employees for temporary disabilities but not pregnancy violates Title VII); see also AT & T Corp. v. Hulteen,556 U.S. 701, 717, n. 2, 129 S.Ct. 1962, 173 L.Ed.2d 898 (2009)(GINSBURG, J., dissenting).

*1351B

Before Congress passed the Pregnancy Discrimination Act, the EEOC issued guidance stating that "[d]isabilities caused or contributed to by pregnancy ... are, for all job-related purposes, temporary disabilities" and that "the availability of ... benefits and privileges ... shall be applied to disability due to pregnancy or childbirth on the same terms and conditions as they are applied to other temporary disabilities." 29 CFR § 1604.10(b) (1975). Indeed, as early as 1972, EEOC guidelines provided: "Disabilities caused or contributed to by pregnancy ... are, for all job-related purposes, temporary disabilities and should be treated as such under any health or temporary disability insurance or sick leave plan available in connection with employment." 37 Fed. Reg. 6837 (1972)(codified in 29 CFR § 1604.10(b) (1973)).

Soon after the Act was passed, the EEOC issued guidance consistent with its pre-Act statements. The EEOC explained: "Disabilities caused or contributed to by pregnancy ... for all job-related purposes, shall be treated the same as disabilities caused or contributed to by other medical conditions." See § 1604.10(b) (1979). Moreover, the EEOC stated that "[i]f other employees temporarily unable to lift are relieved of these functions, pregnant employees also unable to lift must be temporarily relieved of the function." 29 CFR pt. 1604, App., p. 918.

This post-Act guidance, however, does not resolve the ambiguity of the term "other persons" in the Act's second clause. Rather, it simply tells employers to treat pregnancy-related disabilities like nonpregnancy-related disabilities, without clarifying how that instruction should be implemented when an employer does not treat all nonpregnancy-related disabilities alike.

More recently-in July 2014-the EEOC promulgated an additional guideline apparently designed to address this ambiguity. That guideline says that "[a]n employer may not refuse to treat a pregnant worker the same as other employees who are similar in their ability or inability to work by relying on a policy that makes distinctions based on the source of an employee's limitations (e.g., a policy of providing light duty only to workers injured on the job)." 2 EEOC Compliance Manual § 626-I(A)(5), p. 626:0009 (July 2014). The EEOC also provided an example of disparate treatment that would violate the Act:

"An employer has a policy or practice of providing light duty, subject to availability, for any employee who cannot perform one or more job duties for up to 90 days due to injury, illness, or a condition that would be a disability under the ADA. An employee requests a light duty assignment for a 20-pound lifting restriction related to her pregnancy. The employer denies the light duty request." Id.,at 626:0013, Example 10.

The EEOC further added that "an employer may not deny light duty to a pregnant employee based on a policy that limits light duty to employees with on-the-job injuries." Id.,at 626:0028.

The Solicitor General argues that we should give special, if not controlling, weight to this guideline. He points out that we have long held that "the rulings, interpretations and opinions" of an agency charged with the mission of enforcing a particular statute, "while not controlling upon the courts by reason of their authority, do constitute a body of experience and informed judgment to which courts and litigants may properly resort for guidance." Skidmore v. Swift & Co.,