Supreme Court Oral Arguments Have Concluded in Important Case Alleging Pregnancy Discrimination
The Supreme Court of the United States (SCOTUS) recently heard arguments in Young v. United Parcel Service, which has previously been covered here. We took the time to review the complete audio recording of the oral arguments and have it summarized here for you.
The Court spent an hour attempting to parse the meaning behind the Pregnancy Discrimination Act (PDA) to determine whether an employee that was denied a lifting accommodation due to pregnancy should be able to take her case to trial after losing at the summary judgment stage. The Fourth Circuit Court of Appeals affirmed the prior summary judgment ruling in favor of the employer. The Justices were loaded with questions for attorneys on both sides, and Justice Kennedy (Reagan appointee) fired the first question at the employee’s attorney less than a minute into the argument. He challenged the employee’s representation that the only restriction that was not accommodated was a lifting restriction due to pregnancy.
Justices Ginsburg (Clinton appointee), Scalia (Reagan appointee), and Breyer (Clinton appointee) were also quick to join in the questions. Justice Scalia pointed out that the employee was essentially arguing for most favored nation treatment, which is a common contract term that requires a recipient to be treated no less advantageously than other most favored nation recipients. Stated another way, Justice Scalia was suggesting that the employee’s interpretation would require that if the CEO of a company had a condition that required transportation to work, then the company would have to provide the same accommodation to a pregnant employee if a driving restriction was ordered. Justice Breyer strongly suggested that he wished that the employee would have brought a disparate impact claim (a claim based on a neutrally written policy that has the impact of discriminating against a certain class), but noted that this claim was not timely pursued.
Interestingly, the federal government, through Solicitor General Verrilli, argued in favor of the employee. This is interesting because the government has previously defended a similar policy for United States Postal Service employees. As General Verrilli noted in his argument, this reflects a position change, partially in light of recent EEOC guidance on PDA interpretation. This new guidance was released on July 14, 2014, shortly after SCOTUS agreed to hear the case. The full implications of this guidance are beyond the scope of this post, but it generally supports the employee’s arguments that employers must treat pregnant employee similar to non-pregnant employees that are similar in their ability to work. General Verrilli was questioned about this change of position by Justice Ginsburg, and Justice Scalia was quick to correctly point out that the Court is charged with interpreting the statutes, irrespective of the EEOC’s and Solicitor General’s interpretation.
Finally, in what was the more heated exchange, led mainly by Justices Kagan (Obama appointee) and Ginsburg, the employer was questioned extensively about the purpose of the PDA and Congress’ intent to overrule prior precedent that did not consider discrimination based on pregnancy as discrimination based on sex. The employer fairly criticized the recently released EEOC guidance as being rushed, without a notice and comment period. Finally, the employer argued that the PDA created a floor for regulations and that the democratic process should be allowed to take place so states can enact more stringent requirements as necessary.
This case should be decided in the next couple of months and could have large-scale implications on employment practices across the country. If the Court sides with the employee, employers would be wise to revisit their own accommodation policies to ensure compliance. Stay tuned as we continue to provide coverage of this case with an update once the Court releases a decision. If you have a question about this case or PDA compliance, please contact a member of our Employment Law team.