[135 S.Ct. 1339] Argued December 3, 2014.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
Vacated and remanded.
[135 S.Ct. 1340] [191 L.Ed.2d 284] The Pregnancy Discrimination Act added new language to the definitions subsection of Title VII of the Civil Rights Act of 1964. The first clause of the Pregnancy Discrimination Act specifies that Title VII's prohibition against sex discrimination applies to discrimination " because of or on the basis of pregnancy, childbirth, or [135 S.Ct. 1341] related medical conditions." 42 U.S. C § 2000e(k). The Act's second clause 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." Ibid. This case asks the Court to determine how the latter provision applies in the context of an employer's policy that accommodates many, but not all, workers with nonpregnancy-related disabilities.
Petitioner Young was a part-time driver for respondent United Parcel Service (UPS). When she became pregnant, her doctor advised her that she should not lift more than 20 pounds. UPS, however, required drivers like Young to be able to lift up to 70 pounds. UPS told Young that she could not work while under a lifting restriction. Young subsequently filed this federal lawsuit, claiming that UPS acted unlawfully in refusing to accommodate her pregnancy-related lifting restriction. She brought only a disparate-treatment claim of discrimination, which a plaintiff can prove either by direct evidence that a workplace policy, practice, or decision relies expressly on a protected characteristic, or by using the burden-shifting framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668. Under that framework, the plaintiff has " the initial burden" of " establishing a prima facie case" of discrimination. Id., at 802, 93 S.Ct. 1817, 36 L.Ed.2d 668. If she carries her burden, the employer must have an opportunity " to articulate some legitimate, non-discriminatory reason[s] for" the difference in treatment. Ibid. If the employer articulates such reasons, the plaintiff then has " an opportunity to prove by a preponderance of the evidence that the reasons . . . 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.
After discovery, UPS sought summary judgment. In reply, Young presented several favorable facts that she believed she could prove. In particular, she pointed to UPS policies that accommodated workers who were injured on the job, had disabilities covered by the Americans with [191 L.Ed.2d 285] Disabilities Act of 1990 (ADA), or had lost Department of Transportation (DOT) certifications. Pursuant to these policies, Young contended, UPS had accommodated several individuals whose disabilities created work restrictions similar to hers. She argued that these policies showed that UPS discriminated against its pregnant employees because it had a light-duty-for-injury policy for numerous " other persons," but not for pregnant workers. UPS responded that, since Young did not fall within the on-the-job injury, ADA, or DOT categories, it had not discriminated against Young on the basis of pregnancy, but had treated her just as it treated all " other" relevant " persons."
The District Court granted UPS summary judgment, concluding, inter alia, that Young could not make out a prima facie case of discrimination under McDonnell Douglas. The court found that those with whom Young had compared herself--those falling within the on-the-job, DOT, or ADA categories--were too different to qualify as " similarly situated comparator[s]." The Fourth Circuit affirmed.
1. An individual pregnant worker who seeks to show disparate treatment through indirect evidence may do so through application of the McDonnell Douglas framework. Pp. 10-23.
(a) The parties' interpretations of the Pregnancy Discrimination Act's second clause are unpersuasive. Pp. 12-20.
(i) Young claims that as long as " an employer accommodates only a subset of [135 S.Ct. 1342] 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. Her reading proves too much. The Court doubts that Congress intended to grant pregnant workers an unconditional " most-favored-nation" status, such that employers who provide one or two workers with an accommodation must provide similar accommodations to all pregnant workers, irrespective of any other criteria. After all, the second clause of the Act, 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 specify the particular " other persons" Congress had in mind as appropriate comparators for pregnant workers. Moreover, disparate-treatment law normally allows 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., Burdine, supra, at 252-258, 101 S.Ct. 1089, 67 L.Ed.2d 207. There is no reason to think Congress intended its language in the Pregnancy Discrimination Act to deviate from that approach. Pp. 12-14.
(ii) The Solicitor General argues that the Court should give special, if not controlling, weight to a 2014 Equal Employment Opportunity Commission guideline concerning the application of Title VII and the ADA to pregnant employees. But that [191 L.Ed.2d 286] guideline lacks the timing, " consistency," and " thoroughness" of " consideration" necessary to " give it power to persuade." Skidmore v. Swift & Co., 323 U.S. 134, 140, 65 S.Ct. 161, 89 L.Ed. 124. The guideline was promulgated after certiorari was granted here; it takes a position on which previous EEOC guidelines were silent; it is inconsistent with positions long advocated by the Government; and the EEOC does not explain the basis for its latest guidance. Pp. 14-17.
(iii) UPS claims that the Act's second clause simply defines sex discrimination to include pregnancy discrimination. But that cannot be right, as the first clause of the Act accomplishes that objective. Reading the Act's second clause as UPS proposes would thus render the first clause superfluous. It would also fail to carry out a key congressional objective in passing the Act. The Act was intended to overturn the holding and the reasoning of General Elec. Co. v. Gilbert, 429 U.S. 125, 97 S.Ct. 401, 50 L.Ed.2d 343, which upheld against a Title VII challenge a company plan that provided nonoccupational sickness and accident benefits to all employees but did not provide disability-benefit payments for any absence due to pregnancy. Pp. 17-20.
(b) An individual pregnant worker who seeks to show disparate treatment may make out a prima facie case under the McDonnell Douglas framework by showing that she belongs to the protected class, that she sought accommodation, that the employer did not accommodate her, and that the employer did accommodate others " similar in their ability or inability to work." The employer may then seek to justify its refusal to accommodate the plaintiff by relying on " legitimate, nondiscriminatory" reasons for denying accommodation. That reason normally cannot consist simply of a claim that it is more expensive or less convenient to add pregnant women to the category of those whom the employer accommodates. If the employer offers a " legitimate, nondiscriminatory" reason, the plaintiff may show that it [135 S.Ct. 1343] is in fact pretextual. The plaintiff may reach a jury on this issue 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. 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. This approach is consistent with the longstanding rule that a plaintiff can use circumstantial proof to rebut an employer's apparently legitimate, nondiscriminatory reasons, see Burdine, supra, at 255, n. 10, 101 S.Ct. 1089, 67 L.Ed.2d 207, and with Congress' intent to overrule Gilbert. Pp. 20-23.
2. Under this interpretation of the Act, the Fourth Circuit's judgment must be vacated. Summary judgment is appropriate when there is " no genuine dispute as to any material fact." Fed. Rule Civ. Proc. 56(a). The record here shows that Young created a genuine dispute as to whether UPS provided more favorable treatment to [191 L.Ed.2d 287] at least some employees whose situation cannot reasonably be distinguished from hers. It is left to the Fourth Circuit to determine on remand whether Young also created a genuine issue of material fact as to whether UPS' reasons for having treated Young less favorably than these other nonpregnant employees were pretextual. Pp. 23-24.
707 F.3d 437, vacated and remanded.
Samuel R. Bagenstos argued the cause for petitioner.
Donald B. Verrilli, Jr. argued the cause for the United States, as amicus curiae, by special leave of the court.
Caitlin J. Halligan argued the cause for respondent.
BREYER, J., delivered the opinion of the Court, in which ROBERTS, C. J., and GINSBURG, SOTOMAYOR, and KAGAN, JJ., joined. ALITO, J., filed an opinion concurring in the judgment. SCALIA, J., filed a dissenting opinion, in which KENNEDY and THOMAS, JJ., joined. KENNEDY, J., filed a dissenting opinion.
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 [135 S.Ct. 1344] provision 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.
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 [191 L.Ed.2d 288] 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.
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 [135 S.Ct. 1345] VII'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, 36 L.Ed.2d 668. 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 [191 L.Ed.2d 289] 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, 36 L.Ed.2d 668.
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 effects of an employment practice, determining whether they are unlawful irrespective of motivation or intent. See Raytheon, supra, at 52-53, 124 S.Ct. 513, 157 L.Ed.2d 357; 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, 52 L.Ed.2d 396 (rejecting contention that the " burden of proof in a pattern-or-practice case must be equivalent to that outlined in McDonnell Douglas " ). [135 S.Ct. 1346] C
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 Douglas framework. 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 [191 L.Ed.2d 290] 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 U.S. Dist. 14266, 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-job injury." 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.
[135 S.Ct. 1347] 12. Young returned to work as a driver in June 2007, about two months after her baby ...