Young v. United Parcel Service, Inc.,
575 U.S. ___ (2015)

Annotate this Case
  • Syllabus  | 
  • Opinion (Stephen G. Breyer)  | 
  • Concurrence (Samuel A. Alito, Jr.)  | 
  • Dissent (Anthony M. Kennedy)  | 
  • Dissent (Antonin Scalia)

SUPREME COURT OF THE UNITED STATES

_________________

No. 12 1226

_________________

PEGGY YOUNG, PETITIONER v. UNITED PARCEL SERVICE, INC.

on writ of certiorari to the united states court of appeals for the fourth circuit

[March 25, 2014]

Justice Alito, concurring in the judgment.

As originally enacted, Title VII of the Civil Rights Act of 1964, 42 U. S. C. 2000e 2(a)(1), made it an unlawful employment practice to discriminate because of [an] in-dividual s . . . sex but made no mention of discrimination because of pregnancy. In General Elec. Co. v. Gilbert, 429 U. S. 125 140 (1976), this Court held that Title VII did not reach pregnancy discrimination. Congress responded by enacting the Pregnancy Discrimination Act (PDA), which added subsection (k) to a definitional provision, 2000e. Subsection (k) contains two clauses. The first is straightforward; the second is not.

I

The first clause provides that the terms because of sex or on the basis of sex include, but are not limited to, because of or on the basis of pregnancy. [1] This clause has the effect of adding pregnancy to the list of prohibited grounds (race, sex, etc.) originally included in 2000e 2(a)(1). Claims of discrimination under that provision require proof of discriminatory intent. See, e.g., Ricci v. DeStefano, 557 U. S. 557, 577 (2009) ; Watson v. Fort Worth Bank & Trust, 487 U. S. 977 986 (1988). Thus, as a result of the first clause, an employer engages in unlawful discrimination under 2000e 2(a)(1) if (and only if) the employer s intent is to discriminate because of or on the basis of pregnancy.

If an employer treats a pregnant woman unfavorably for any other reason, the employer is not guilty of an unlawful employment practice under 2000e 2(a), as defined by the first clause of the PDA. And under this first clause, it does not matter whether the employer s ground for the unfavorable treatment is reasonable; all that matters is the employer s actual intent. Of course, when an employer claims to have made a decision for a reason that does not seem to make sense, a factfinder may infer that the employer s asserted reason for its action is a pretext for unlawful discrimination. But if the factfinder is convinced that the employer acted for some reason other than pregnancy, the employer cannot be held liable under this clause.

II

The PDA, however, does not simply prohibit discrimination because of or on the basis of pregnancy. Instead, the second clause in 2000e(k) goes on to say the follow-ing: and women affected by pregnancy, childbirth, or re-lated medical conditions shall be treated the same for all employment-related purposes, including receipt of benefits under fringe benefit programs, as other persons not so affected but similar in their ability or inability to work. This clause raises several difficult questions of interpretation that are pertinent to the case now before us.

A

First, does this clause simply explain what is meant by discrimination because of or on the basis of pregnancy? Or does it impose an additional restriction on employer conduct? I believe that this clause does not merely explain but instead adds to the language that precedes it.

This is the interpretation that is most consistent with the statutory text. This clause begins with the word and, which certainly suggests that what follows represents an addition to what came before.

It is also revealing that the second clause makes no reference to intent, which is the linchpin of liability under the first clause, and that the second clause is an affirmative command (an employer shall provide equal treatment), while the first clause is negative (it prohibits discrimination). If a careful drafter wanted to make it clear that the second clause does no more than explain what is meant by the first, the language of the second clause would have to be substantially modified.

Finally, if the second clause does not set out an additional restriction on employer conduct, it would appear to be largely, if not entirely, superfluous. See, e.g., Arlington Central School Dist. Bd. of Ed. v. Murphy, 548 U. S. 291, 299, n. 1 (2006) ( [I]t is generally presumed that statutes do not contain surplusage ). As noted, the first clause, by adding pregnancy to the list of prohibited grounds for adverse employment actions, mandates that discrimination because of pregnancy be treated like discrimination because of race, sex, etc. An employer commits an unlawful employment practice if it intentionally treats employees of a particular race or sex less favorably than other employees who are similar in their ability or inability to work. Accordingly, the first clause of the PDA is alone sufficient to make it clear that an employer is guilty of an unlawful employment practice if it intentionally treats pregnant employees less favorably than others who are similar in their ability or inability to work.[2] For these reasons, I conclude that the second clause does not merely explain the first but adds a further requirement of equal treatment irrespective of intent.

B

This leads to the second question: In determining whether pregnant employees have been given the equal treatment that this provision demands, with whom must the pregnant employees be compared? I interpret the second clause to mean that pregnant employees must be compared with employees performing the same or very similar jobs. Pregnant employees, the second provision states, must be given the same treatment as other employees who are similar in their ability or inability to work. An employee s ability to work despite illness, injury, or pregnancy often depends on the tasks that the employee s job includes. Different jobs have different tasks, and different tasks require different abilities. Suppose that an employer provides a period of leave with pay for employees whose jobs require tasks, e.g., lifting heavy objects, that they cannot perform because of illness or injury. Must the employer provide the same benefits for pregnant employees who are unable to lift heavy objects but have desk jobs that do not entail heavy lifting? The answer is no. The treatment of pregnant employees must be compared with the treatment of nonpregnant employees whose jobs involve the performance of the same or very similar tasks.

C

This conclusion leads to a third, even more difficult question: When comparing pregnant employees to nonpregnant employees in similar jobs, which characteristics of the pregnant and nonpregnant employees must be taken into account? The answer, I believe, must be found in the reference to other employees who are similar in their ability or inability to work. I see two possible interpretations of this language. The first is that the capacity to perform the tasks required by a job is the only relevant characteristic, but like the Court, ante, at 12 14, I cannot accept this most favored employee interpretation.

This interpretation founders when, as in this case, an employer treats pregnant women less favorably than some but not all nonpregnant employees who have similar jobs and are similarly impaired in their ability to perform the tasks that these jobs require. In this case, as I will explain below, see Part III, United Parcel Service (UPS) drivers who were unable to perform the physical tasks required by that job fell into three groups: first, nonpregnant employees who received favorable treatment; second, nonpregnant employees who do not receive favorable treatment; and third, pregnant employees who, like the nonpregnant employees in the second category, did not receive favorable treatment. Under these circumstances, would the most favored employee interpretation require the employer to treat the pregnant women like the employees in the first, favored group? Or would it be sufficient if the employer treated them the same as the nonpregnant employees in the second group who did not receive favorable treatment?

Recall that the second clause of 2000e(k) requires that pregnant women be treated the same for all employment-related purposes . . . as other persons not so affected but similar in their ability or inability to work. (Emphasis added.) Therefore, UPS could say that its policy treated the pregnant employees the same as other persons who were similar in their ability or inability to work, namely, those nonpregnant employees in the second category. But at the same time, the pregnant drivers like petitioner could say that UPS did not treat them the same as other employees who were similar in their ability or inability to work, namely, the nonpregnant employees in the first group. An interpretation that leads to such a problem cannot be correct.[3]

I therefore turn to the other possible interpretation of the phrase similar in their ability or inability to work, namely, that similar in the ability or inability to work means similar in relation to the ability or inability to work. [4] Under this interpretation, pregnant and non-pregnant employees are not similar in relation to the ability or inability to work if they are unable to work for different reasons. And this means that these two groups of employees are not similar in the relevant sense if the employer has a neutral business reason for treating them differently. I agree with the Court that a sufficient 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. Ante, at 21.[5] Otherwise, however, I do not think that the second clause of the PDA authorizes courts to evaluate the justification for a truly neutral rule. The language used in the second clause of the PDA is quite different from that used in other antidiscrimination provisions that require such an evaluation. Cf. 12112(b)(5)(A) (discrimination against a person with a disability includes not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified . . . employee, unless [the employer] can demonstrate that the accommodation would impose an undue hardship on the operation of [its] business (emphasis added)); 2000e( j) (employer must reasonably accommodate religious observance, practice, and belief unless that would impose an undue hardship on the conduct of the employer s business ); 2000e 2(k)(1)(A)(i) (business necessity defense in Title VII-disparate-impact cases).

III

I understand petitioner in this case to assert claims under both the first and second clauses of 2000e(k). With respect to her claim under the first clause, I agree with the Court that the information in the summary judgment record is sufficient (albeit barely) to take the question to the trier of fact.

I believe that the judgment of the Court of Appeals with respect to petitioner s claim under the second clause must also be vacated. Petitioner sought to be excused during her pregnancy from the lifting requirements that were among her tasks as a driver. Under the policy that United Parcel Service claims to have had in force at the time in question, drivers who were physically unable to perform the tasks required by that position fell into three groups.

First, some drivers were reassigned to less physically demanding positions. Included in this group were (a) those who were unable to work as drivers due to an injury incurred on the job, (b) those drivers who were unable to work as drivers due to a disability as defined by the Americans With Disabilities Act of 1990 (ADA), and (c) those drivers who, as the result of a medical condition or injury, lost the Department of Transportation (DOT) certification needed to work in that capacity.

The second group of drivers consisted of those who were not pregnant and were denied transfer to a light-duty job. Drivers who were injured off the job fell into this category. The third group was made up of pregnant drivers like petitioner.

It is obvious that respondent had a neutral reason for providing an accommodation when that was required by the ADA. Respondent also had neutral grounds for providing special accommodations for employees who were injured on the job. If these employees had not been permitted to work at all, it appears that they would have been eligible for workers compensation benefits. See Md. Lab. & Empl. Code Ann. 9 614 (2008).

The accommodations that are provided to drivers who lost their DOT certifications, however, are another matter. A driver may lose DOT certification for a variety of reasons, including medical conditions or injuries incurred off the job that impair the driver s ability to operate a motor vehicle. Such drivers may then be transferred to jobs that do not require physical tasks incompatible with their illness or injury. It does not appear that respondent has provided any plausible justification for treating these drivers more favorably than drivers who were pregnant.

The Court of Appeals provided two grounds for distinguishing petitioner s situation from that of the drivers who had lost their DOT certifications, see 707 F. 3d 437, 450 (CA4 2013), but neither is adequate. First, the Court of Appeals noted that no legal obstacle [stood] between [petitioner] and her work. Ibid. But the legal obstacle faced by drivers who have lost DOT certification only explains why those drivers could not continue to perform all the tasks required by their ordinary jobs; it does not explain why respondent went further and provided such drivers with a work accommodation. Petitioner s pregnancy prevented her from continuing her normal work as a driver, just as is the case for a driver who loses DOT certification. But respondent had a policy of accommodating drivers who lost DOT certification but not accommodating pregnant women, like petitioner. The legal obstacle of lost certification cannot explain this difference in treatment.

Second, the Court of Appeals observed that those with DOT certification maintai[n] the ability to perform any number of demanding physical tasks, ibid., but it is doubtful that this is true in all instances. A driver can lose DOT certification due to a great variety of medical conditions, including loss of a limb, 49 CFR 391.41(b)(1) (2013); impairments of the arm, hand, finger, foot, or leg, 391.41(b)(2)(i) and (ii); cardiovascular disease, 391.41(b)(4); respiratory dysfunction, 391.41(b)(5); high blood pressure, 391.41(b)(6); arthritis, 391.41(b)(7); and epilepsy 391.41(b)(8). It is not evident and as far as I am aware, the record does not show that all drivers with these conditions are nevertheless able to perform a great many physically demanding tasks. Nevertheless, respondent says that it was its policy to transfer such drivers to so-called inside jobs when such positions were available. Presumably, respondent did not assign these drivers to jobs that they were physically unable to perform. So in at least some instances, they must have been assigned to jobs that did not require them to perform tasks that they were incapable of performing due to the medical condition that caused the loss of DOT certification. Respondent has not explained why pregnant drivers could not have been given similar consideration.

For these reasons, it is not at all clear that respondent had any neutral business ground for treating pregnant drivers less favorably than at least some of its nonpregnant drivers who were reassigned to other jobs that they were physically capable of performing. I therefore agree with the Court that the decision of the Court of Appeals with respect to petitioner s claim under the second clause of the PDA must be vacated, and the case must be remanded for further proceedings with respect to that claim.

Notes

1 While 2000e 2(a) uses the phrase because of . . . sex, other provisions governed by the definitions in 2000e use the phrase on the basis of . . . sex. See, e.g., 2000e 2(b), (k)(1)(A). Therefore, subsection (k) covers this phrase as well.
2 Justice Scalia s dissent argues, post, at 4 6, that the second clause serves the useful purpose of clarifying the meaning of discrimination because of pregnancy. Without the second clause, that dissent maintains, there might be uncertainty as to whether an employer would commit an unlawful employment practice if it excluded pregnancy from an otherwise complete disability benefits program. Contrary to the dissent, however, I think that the answer to this question would be quite obvious based on the first clause of the PDA alone. If an employer provided benefits for every employee who was temporarily unable to work due to any physical condition other than pregnancy, that employer would be in the same position as an employer who provided similar benefits for employees of every race but one. In both situations, the employer would clearly discriminate on a prohibited ground.
3 The most favored employee interpretation would also lead to wildly implausible results. Suppose, for example, that an employer had a policy of refusing to provide any accommodation for any employee who was unable to work due to any reason but that the employer wished to make an exception for several employees who were seriously injured while performing acts of extraordinary heroism on the job, for example, saving the lives of numerous fellow employees during a fire in the workplace. If the ability to perform job tasks was the only characteristic that could be considered, the employer would face the choice of either denying any special treatment for the heroic employees or providing all the same benefits to all pregnant employees. It is most unlikely that this is what Congress intended. Such a requirement would go beyond anything demanded by any other antidiscrimination law.
4 Opinions have often used the phrase similar in to mean similar in relation to or similar with respect to. See, e.g., Kiobel v. Royal Dutch Petroleum Co., 569 U. S. ___, ___ (2013) (Breyer, J., concurring in judgment) (slip op., at 3) ( similar in character and specificity to piracy ); Williams v. Illinois, 567 U. S. ___, ___ (2012) (Thomas, J., concur-ring in judgment) (slip op., at 10) ( similar in solemnity to the Marian examination practices that the Confrontation Clause was designed to prevent ). Sykes v. United States, 564 U. S. ___, ___ (2011) (slip op., at 6) ( similar in degree of danger to that involved in arson ).
5 If cost alone could justify unequal treatment of pregnant employees, the plan at issue in General Electric Co. v. Gilbert, 429 U. S. 125 (1976) , would be lawful. Cf. id., at 138. But this Court has repeatedly said that the PDA rejected both the holding and the reasoning in Gilbert. AT&T v. Hulteen, 556 U. S. 701, 720 (2009) (Ginsburg, J., dissenting) (quoting Newport News Shipbuilding & Dry Dock Co. v. EEOC, 462 U. S. 669, 678 (1983) .
Disclaimer: Official Supreme Court case law is only found in the print version of the United States Reports. Justia case law is provided for general informational purposes only, and may not reflect current legal developments, verdicts or settlements. We make no warranties or guarantees about the accuracy, completeness, or adequacy of the information contained on this site or information linked to from this site. Please check official sources.