YOUNG V. UPS: Supreme Court Weighs In On Pregnant Workers’ Rights
Ty Hyderally, Esq.February 2015 Newsletter
The Supreme Court is deciding on an important case that will impact pregnant women in the workforce.
The plaintiff in the case, Peggy Young ("Young"), sued her former employer, United Parcel Service Inc. ("UPS") on the grounds that she was discriminated against when she became pregnant because she was forced to take unpaid leave instead of being allowed to work on light duty as a driver for UPS.
At issue in the case is whether the federal Pregnancy Discrimination Act ("PDA") requires an employer, like UPS, to provide such an accommodation for their pregnant employees when the employer does, on the other hand, offer light duty, to disabled workers as well as workers injured on the job. Some of the difficulty in deciding this issue is the ambiguous language in the PDA. The PDA requires employers to treat "women affected by pregnancy, childbirth, or related conditions" the same as "other persons not so affected but similar in their ability or inability to work." Thus, the PDA requires employers like UPS to provide pregnant workers light duty work so long as it does so for other workers similar in their ability or inability to work.
The lower courts have ruled unfavorably for Young, but the Supreme Court granted certiorari on July 1, 2014, and heard oral arguments back in December 2014.
Background on the Case
Young began working for UPS in 1999. Before her pregnancy, Young held a position as a part-time, early-morning driver. Her job was to pick up and deliver packages that arrived via air carrier the previous night. As defined by UPS, Young’s essential job functions as an early-morning driver included lifting, lowering, pushing, pulling, leveraging, and manipulating packages weighing up to 70 pounds, as well as assisting in moving packages weighing up to 150 pounds.
In July 2006, Young requested leave from work to undergo in vitro fertilization, afterwhich she then became pregnant. Young provided a doctor’s note to her supervisor, indicating that she could not lift more than twenty pounds during the first twenty weeks of her pregnancy and not more than ten pounds thereafter. In September 2006, Young’s supervisor, Carolyn Martin ("Martin"), informed Young that UPS policy would not permit her to continue working as long as she had a twenty-pound lifting restriction. Young attempted to explain to Martin that her job rarely required her to lift more than twenty pounds, that other UPS employees had agreed to assist her, and that she was willing to do either light duty work or her regular job. However, Martin refused to provide Young any accommodations or continue her employment with UPS, causing her to lose her wages as well as her UPS health care coverage.
Martin justified her refusal to provide accommodations by applying the terms of the collective bargaining agreement and UPS policy, which only offered light duty to workers who were injured on the job, who were accommodated under the American with Disabilities Act ("ADA"), and who had lost their driving certification from the Department of Transportation (DOT), even those who had lost their DOT certification due to a D.U.I. – but does not provide this same light duty to workers affected by pregnancy. Martin also claimed that Young did not qualify for short-term disability benefits because she had presented no note stating she could not work at all and Young had exhausted her leave under the Family and Medical Leave Act ("FMLA").
In July 2007, Young filed a complaint with the Equal Employment Opportunity Commission ("EEOC") and was granted the right to sue in the United States District Court for the District of Maryland in September 2008. Young alleged discrimination under the PDA and the ADA. The District Court concluded that Young had not shown direct evidence of discrimination and failed to establish a prima facie case of sex discrimination because she could not identify a similarly situated comparator who received more favorable treatment than she did. The District Court denied Young's motion for reconsideration in August 2011 causing her to file for appeal in the United States Court of Appeals for the Fourth Circuit.
On January 9, 2013, the United States Court of Appeals for the Fourth Circuit ruled against Young. At the appellate level, the Court deemed that Young’s ADA claim had failed because she could not prove that she had a disability. The ADA defines a disability as a physical or mental impairment that substantially limits one or more major life activities. Young acquiesced to the fact that her pregnancy did not permanently limit her life activities but argued that she experienced discrimination because she was "regarded as" disabled. A "regarded as" disability claim requires the employer to believe that an individual has a substantially limiting impairment when, in fact, the impairment is not so limiting. Sutton v. United Air Lines, Inc., 527 U.S. 471, 489, 119 S.Ct. 2139, 144 L.Ed.2d 450 (1999). The Court determined that Young failed to prove her discrimination claim under the "regarded as" theory because she could not provide any evidence that suggested that her supervisors considered her disabled.
Meanwhile, Young contended that there was direct evidence of discrimination under the PDA because UPS policy provides light duty work for employees who sustain injuries while at work, but at the same time denies light duty work to pregnant workers. However, the Court determined that the UPS policy did not violate the PDA because it treated pregnant workers and nonpregnant workers alike, noting that employees who sustained off-work injuries at UPS were also denied light duty. Thus, a pregnant employee who is denied light duty should be considered on par with an employee who has suffered from an "off-work injury."
Thus, the Fourth Circuit determined that UPS policies did not discriminate against pregnant woman. The Court’s decision would allow employers to refuse work accommodations to pregnant woman so long as they also deny accommodations to all individuals with similar limitations. Young appealed the Fourth Circuit decision and the case was granted certiorari by the United States Supreme Court on July 1, 2014.
The Current Climate for Pregnant Workers and the Future of Young
The Supreme Court is currently reviewing the Young v. UPS case against a backdrop of recent efforts and strides to protect pregnant workers. For example, on January 15, 2015, President Obama signed an executive order to give federal employees up to six weeks of paid family leave after the birth, adoption, or foster placement of a new child. The President’s budget also proposes $2.2 billion in funding to incentivize states to pass their own paid leave laws at the local level. (While the FMLA allows for up to 12 weeks of unpaid maternity leave in certain circumstances, the United States remains the only developed country in the world that does not require employers to provide paid maternity leave.) In his State of the Union address, Obama further vowed to prioritize family leave and sick days during his last two years in office.
Meanwhile, the oral arguments that took place before the Supreme Court in December have given some clues as how the Justices may rule on the case. Young’s attorney, Samuel R. Bagenstos ("Bagenstos"), argued that UPS’s policy requires light duty to be provided as an accommodation to three broad classes of workers, which seemed to "cover the waterfront of everything but pregnancy," and that because UPS provides accommodations to these three broad classes of workers, UPS is also required under the PDA to provide similar light duty accommodations to pregnant workers. Justice Kennedy jumped in and admonished Bagenstos for giving a "misimpression" that the only condition that UPS did not accommodate with light duty was that of pregnancy. Meanwhile, Justices Antonin Scalia and Stephen G. Breyer suggested that Young’s interpretation of the statute would give pregnant workers "a most favored nation" status – the exact term used by the Fourth Circuit when ruling against Young – by giving pregnant workers the best treatment offered by the company to any of its employees.
During her argument, UPS’s attorney, Caitlin J. Halligan ("Halligan"), stressed that pregnant workers should be compared to other workers who sustained off-the-job injuries, who would similarly not be entitled to an accommodation of light duty under UPS’s policy. While Justice Samuel A. Alito Jr. seemed to agree with Halligan’s comparison, Justice Ruther Bader Ginsburg contended that UPS’s interpretation of the statute would, in fact, seem to give pregnant workers a "least favored nation" status, pointing out that "there is not in this record a single instance of anyone who needed a lifting dispensation who didn’t get it except for pregnant people." Meanwhile, Justice Elena Kagan, with some input from Justice Sonia Sotomayor, also grilled Halligan during her argument, with Justice Kagan asserting that the PDA’s broad remedial purpose should be considered. Kagan asserted that the PDA "was supposed to be about removing stereotypes of pregnant women as marginal workers." Kagan further went on to state that the PDA "was supposed to be about ensuring that they wouldn’t be unfairly excluded from the workplace," but that UPS’s policy unevenly "accommodates some workers, but puts all pregnant women on one side of the line."
Employee advocates and employers alike are waiting to see how it will all play out. The Supreme Court’s decision will particularly impact women in low-wage or physically demanding jobs, such as nursing assistants or those in the retail industry.
By Zinnia Faruque, Esq. and Malcolm Thorpe
Religion and Retail: E.E.O.C. v. Abercrombie & Fitch Stores, Inc.
Ty Hyderally, Esq.
The Supreme Court is set to hear oral argument later this month on case that explores an employer’s responsibilities to provide religious accommodations in the workplace.
The case is based on a discrimination claim brought against Abercrombie & Fitch, Inc. by a Muslim woman, Samantha Elauf (“Elauf”), who is alleging that the national retail clothing store chain refused to hire her because she wore a Muslim head scarf, known as a hijab, because it did not conform with Abercrombie’s “Look Policy.”
Title VII of the Civil Rights Act prohibits employment discrimination based on religion. At issue here, is what sort of notice employees need to give to their employers in order to receive a religious accommodation, such as being allowed to wear a hijab.
The events that led to the religious discrimination lawsuit began in mid–2008, when Elauf, then seventeen-years old, applied for a Model position at the Abercrombie Kids store in the Woodland Hills Mall in Tulsa, Oklahoma. Abercrombie requires employees in its stores to comply with a “Look Policy.” The Look Policy is intended to promote and showcase the Abercrombie brand, which “exemplifies a classic East Coast collegiate style of clothing.” Abercrombie contends that its Look Policy is critical to the health and vitality of its “preppy” and “casual” brand.
Elauf has worn a hijab since she was thirteen and testified that she does so for religious reasons. Elauf interviewed with an assistant manager with her hijab on. The assistant manager, Heather Cooke (“Cooke”), assumed that Elauf wore the hijab because of her religious faith but did not ask her about it during the interview. Cooke assessed Elauf's candidacy using Abercrombie's official interview guide. The guide requires the interviewer to consider the applicant's “appearance & sense of style,” whether the applicant is “outgoing & promotes diversity,” and whether he or she has “sophistication & aspiration.” Each category is assessed on a three-point scale, and an applicant with a score in “appearance” of less than two, or a total combined score of five or less, is not recommended for hire. Cooke initially scored Elauf at a two in each category, for a total of six, which is a score that “meets expectations” and amounts to a recommendation that Abercrombie hire her.
Before extending an offer to Elauf, Cooke wanted to confirm that Elauf’s hijab did not interfere with Abercrombie Policy and so Cooke consulted with the district manager, Randall Johnson (“Johnson”). Cooke testified that Johnson instructed her to change Elauf's interview score on the appearance section from a two to a one, thereby bringing her overall score down to a five and ensuring that she would not be recommended for hire. Cooke changed Elauf's score and threw away the original interview sheet to implement Johnson's alleged instructions. Cooke did not extend a job offer to Elauf.
A prima facie case under Title VII’s religion-accommodation theory requires an employee to “show that (1) he or she had a bona fide religious belief that conflicts with an employment requirement; (2) he or she informed his or her employer of this belief; and (3) he or she was fired [or not hired] for failure to comply with the conflicting employment requirement.” Dixon v. Hallmark Cos., 627 F.3d 849, 855 (11th Cir.2010). The Court concluded that Elauf’s Title VII claim failed because she did not notify her potential employer that she needed a religious accommodation. The EEOC argued that Abercrombie had constructive notice of Elauf’s need for a religious accommodation because Cooke testified that she assumed that Elauf wore a hijab because of her religious faith. However, the Court rejected the EEOC’s constructive notice theory and determined that Title VII requires actual notice.
The Court’s ruling would require employees to notify employers of the need for religious accommodations even when there are obvious symbols of religious observance, such as a hijab or yamaka. On October 2, 2014, the Supreme Court of the United States granted a writ of certiorari to review the notice requirement of Title VII’s religious accommodation theory, and on February 25, 2015, the Court will hear oral argument on the case.
By Zinnia Faruque, Esq. and Malcolm Thorpe
MACH MINING v. EEOC: Should Courts Be Able to Second Guess the EEOC?
Ty Hyderally, Esq.
The Supreme Court is currently deciding whether the courts can second-guess the Equal Employment Opportunity Commission’s mandatory pre-suit process for resolving bias or discrimination claims.
The Equal Employment Opportunity Commission (EEOC) is the federal agency responsible for enforcing federal employment discrimination laws. When presented with a discrimination complaint, the agency must first engage in informal resolution, known as conciliation, before filing a lawsuit.
On January 13, 2015, the Supreme Court heard oral arguments in the sex discrimination case of Mach Mining v. EEOC, and will soon rule on whether judges need to serve as a check on the Commission’s informal resolution efforts.
The case stems from a suit that the EEOC filed on September 27, 2011, against Mach Mining, LLC, a coal mining operator. The EEOC alleged that Mach Mining had engaged in systemic hiring discrimination against women. The EEOC and Mach Mining attempted to reach a settlement before proceeding with litigation to no avail. Mach Mining moved to dismiss the case, claiming the EEOC did not conciliate in good faith prior to filing suit.
The question before the Supreme Court is whether the EEOC’s mandatory conciliation process is subject to judicial review, and if so, what standard of review applies. If the Court finds that the EEOC’s efforts to settle the case were insufficient, Mach Mining will prevail.
In the Seventh Circuit’s decision below, the court reasoned that conciliation efforts were not reviewable. Thus, employers are precluded from claiming the EEOC violated its obligation to conciliate before filing suit.
Allowing for judicial review of conciliation efforts has grand ramifications. It would undermine settlement efforts by compromising confidential negotiations and delay the resolution of the underlying discrimination issue in the case.
During the oral arguments in January, Justice Anthony M. Kennedy emphasized that the law grants extremely broad discretion to the Commission on how to conduct informal settlement efforts. Justice Elena Kagan agreed, pointing out the EEOC’s right to determine what settlement offer is acceptable. Mach Mining responded by clarifying its position that the final decision ultimately rests with the EEOC but, at the very least, the agency must engage in good-faith negotiations before proceeding with the lawsuit.
Chief Justice John G. Roberts and Justice Stephen G. Breyer questioned the EEOC’s extreme position of complete deference and believe that judicial review should be allowed. Justice Roberts argued that if the government performs an act, courts should be able to decide whether or not that act complies with the law.
Overall, the Court leaned towards finding the need for some modest judicial oversight to assure that government agencies, such as the EEOC, comply with the law. The Court’s ultimate finding is likely to have a substantial impact on the resolution of future cases and administrative law.
By Zinnia Faruque, Esq. and Yoana Yakova
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