(Bloomberg View) — Pregnant women won a somewhat surprising victory at the U.S. Supreme Court Wednesday. The court’s four liberals got help from Chief Justice John Roberts, who joined the majority opinionby Justice Stephen Breyer, and a surprise concurrence in the judgment from Justice Samuel Alito, who rarely crosses over to the liberal side. Roberts and Alito may each have had his own reason for breaking conservative ranks.
At issue in the case was the Pregnancy Discrimination Act. That law prohibits discrimination based on pregnancy and childbirth. Then, in a separate provision, it requires employers to treat pregnant women the same “as other persons not so affected but similar in their ability or inability to work.”
Peggy Young is a UPS driver whose doctor told her not to lift more than 20 pounds during the first 20 weeks of her pregnancy and no more than 10 pounds after that. UPS ordinarily requires drivers to be able to lift 70 pounds unaided and 150 pounds with assistance. Young asked for an accommodation during her pregnancy. She pointed out that UPS makes accommodations for drivers who are injured on the job, who lose their Department of Transportation certification, or who suffer from a disability covered by the Americans With Disabilities Act. Because they receive accommodations, she reasoned, it would be discrimination to deny the same accommodation to her.
UPS responded that it didn’t need to accommodate Young, because she didn’t fall into any of those three categories. UPS therefore was treating her the same as someone who wasn’t pregnant but also couldn’t lift 70 pounds. Such a person would lose his job, and so would Young.
Breyer’s opinion for the court rejected both Young’s approach and that of UPS. To follow Young’s approach, he said, would be to give pregnant women a kind of “most-favored-nation” status, under which if anyone was ever accommodated, pregnant women should get the same accommodation. To do what UPS wanted, however, would be to act as though the accommodation provision of the Pregnancy Discrimination Act added nothing to its general prohibition on discrimination against pregnant women.
Instead Breyer struck a pragmatic compromise, as is his wont. Applying a burden-shifting framework known to employment lawyers as “McDonnell Douglas” after the Supreme Court case in which it was first created, Breyer said that the pregnant woman could begin her discrimination case by showing that she had sought an accommodation and been denied while others were granted accommodation — the same way Young in fact began her case.
Then the burden will shift to the employer to explain why no accommodation was granted. The court said that the answer “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.” The employer will have to give a more substantive reason. Presumably employers would respond by explaining why they accommodate those that they in fact accommodate — say, because they are legally required to do so by some different law.