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

Annotate this Case



No. 12–1226



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

[March 25, 2015]

Justice Scalia, with whom Justice Kennedy and Justice Thomas join, dissenting.

Faced with two conceivable readings of the Pregnancy Discrimination Act, the Court chooses neither. It crafts instead a new law that is splendidly unconnected with the text and even the legislative history of the Act. To “treat” pregnant workers “the same . . . as other persons,” we are told, means refraining from adopting policies that impose “significant burden[s]” upon pregnant women without “sufficiently strong” justifications. Ante, at 21. Where do the “significant burden” and “sufficiently strong justification” requirements come from? Inventiveness posing as scholarship—which gives us an interpretation that is as dubious in principle as it is senseless in practice.


Title VII forbids employers to discriminate against employees “because of . . . sex.” 42 U. S. C. §2000e–2(a)(1). The Pregnancy Discrimination Act adds a provision to Title VII’s definitions section:

“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, childbirth, or related medical conditions; and women affected by pregnancy, childbirth, or related 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 . . . .” §2000e(k).

Title VII’s prohibition of discrimination creates liability for both disparate treatment (taking action with “discriminatory motive”) and disparate impact (using a practice that “fall[s] more harshly on one group than another and cannot be justified by business necessity”). Teamsters v. United States, 431 U. S. 324 –336, n. 15 (1977). Peggy Young did not establish pregnancy discrimination under either theory. She argued that United Parcel Service’s refusal to accommodate her inability to work amounted to disparate treatment, but the Court of Appeals concluded that she had not mustered evidence that UPS denied the accommodation with intent to disfavor pregnant women. 707 F. 3d 437, 449–451 (CA4 2013). And Young never brought a claim of disparate impact.

That is why Young and the Court leave behind the part of the law defining pregnancy discrimination as sex discrimination, and turn to the part requiring that “women affected by pregnancy . . . be treated the same . . . as other persons not so affected but similar in their ability or in-ability to work.” §2000e(k). The most natural way to understand the same-treatment clause is that an employer may not distinguish between pregnant women and others of similar ability or inability because of pregnancy. Here, that means pregnant women are entitled to accommodations on the same terms as other workers with disabling conditions. If a pregnant woman is denied an accommodation under a policy that does not discriminate against pregnancy, she has been “treated the same” as everyone else. UPS’s accommodation for drivers who lose their certifications illustrates the point. A pregnant woman who loses her certification gets the benefit, just like any other worker who loses his. And a pregnant woman who keeps her certification does not get the benefit, again just like any other worker who keeps his. That certainly sounds like treating pregnant women and others the same.

There is, however, another way to understand “treated the same,” at least looking at that phrase on its own. One could read it to mean that an employer may not distinguish at all between pregnant women and others of similar ability. Here, that would mean pregnant women are entitled, not to accommodations on the same terms as others, but to the same accommodations as others, no matter the differences (other than pregnancy) between them. UPS’s accommodation for decertified drivers illustrates this usage too. There is a sense in which a pregnant woman denied an accommodation (because she kept her certification) has not been treated the same as an injured man granted an accommodation (because he lost his certification). He got the accommodation and she did not.

Of these two readings, only the first makes sense in the context of Title VII. The point of Title VII’s bans on discrimination is to prohibit employers from treating one worker differently from another because of a protected trait. It is not to prohibit employers from treating workers differently for reasons that have nothing to do with protected traits. See Texas Dept. of Community Affairs v. Burdine, 450 U. S. 248, 259 (1981) . Against that backdrop, a requirement that pregnant women and other workers be treated the same is sensibly read to forbid distinctions that discriminate against pregnancy, not all distinctions whatsoever.

Prohibiting employers from making any distinctions between pregnant workers and others of similar ability would elevate pregnant workers to most favored employees. If Boeing offered chauffeurs to injured directors, it would have to offer chauffeurs to pregnant mechanics. And if Disney paid pensions to workers who can no longer work because of old age, it would have to pay pensions to workers who can no longer work because of childbirth. It is implausible that Title VII, which elsewhere creates guarantees of equal treatment, here alone creates a guarantee of favored treatment.

Let it not be overlooked, moreover, that the thrust of the Pregnancy Discrimination Act is that pregnancy discrimination is sex discrimination. Instead of creating a freestanding ban on pregnancy discrimination, the Act makes plain that the existing ban on sex discrimination reaches discrimination because of pregnancy. Reading the same-treatment clause to give pregnant women special protection unavailable to other women would clash with this central theme of the Act, because it would mean that pregnancy discrimination differs from sex discrimination after all.

All things considered, then, the right reading of the same-treatment clause prohibits practices that discriminate against pregnant women relative to workers of similar ability or inability. It does not prohibit denying pregnant women accommodations, or any other benefit for that matter, on the basis of an evenhanded policy.


The Court agrees that the same-treatment clause is not a most-favored-employee law, ante, at 12, but at the same time refuses to adopt the reading I propose—which is the only other reading the clause could conceivably bear. The Court’s reasons for resisting this reading fail to persuade.

The Court starts by arguing that the same-treatment clause must do more than ban distinctions on the basis of pregnancy, lest it add nothing to the part of the Act defining pregnancy discrimination as sex discrimination. Ante, at 17. Even so read, however, the same-treatment clause does add something: clarity. See Newport News Shipbuilding & Dry Dock Co. v. EEOC, 462 U. S. 669 , n. 14 (1983) (“[T]he specific language in the second clause . . . explains the application of the [first clause]”). Just defining pregnancy discrimination as sex discrimination does not tell us what it means to discriminate because of pregnancy. Does pregnancy discrimination include, in addition to disfavoring pregnant women relative to the workplace in general, disfavoring them relative to disabled workers in particular? Concretely, does an employer engage in pregnancy discrimination by excluding pregnancy from an otherwise complete disability-benefits pro-gram? Without the same-treatment clause, the answers to these questions would not be obvious. An employer could argue that people do not necessarily think of pregnancy and childbirth as disabilities. Or that it would be anomalous to read a law defining pregnancy discrimination as sex discrimination to require him to treat pregnancy like a disability, when Title VII does not require him to treat sex like a disability. Or that even if pregnancy were a disability, it would be sui generis—categorically different from all other disabling conditions. Cf. Geduldig v. Aiello, 417 U. S. 484 –495 (1974) (holding that a State has a rational basis for excluding pregnancy-related disabilities from a disability-benefits program). With the same-treatment clause, these doubts disappear. By requiring that women affected by pregnancy “be treated the same . . . as other persons not so affected but similar in their ability or inability to work” (emphasis added), the clause makes plain that pregnancy discrimination includes disfavoring pregnant women relative to other workers of similar inability to work.

This clarifying function easily overcomes any charge that the reading I propose makes the same-treatment clause “ ‘superfluous, void, or insignificant.’ ” Ante, at 17–18. Perhaps, as the Court suggests, even without the same-treatment clause the best reading of the Act would prohibit disfavoring pregnant women relative to disabled workers. But laws often make explicit what might already have been implicit, “for greater caution” and in order “to leave nothing to construction.” The Federalist No. 33, pp. 205–206 (J. Cooke ed. 1961) (A. Hamilton). That is why we have long acknowledged that a “sufficient” explanation for the inclusion of a clause can be “found in the desire to remove all doubts” about the meaning of the rest of the text. McCulloch v. Maryland, 4 Wheat. 316, 420 (1819). This explanation looks all the more sensible once one remembers that the object of the Pregnancy Discrimination Act is to displace this Court’s conclusion in General Elec. Co. v. Gilbert, 429 U. S. 125 (1976) , that pregnancy discrimination is not sex discrimination. What could be more natural than for a law whose object is superseding earlier judicial interpretation to include a clause whose object is leaving nothing to future judicial interpretation?

That brings me to the Court’s remaining argument: the claim that the reading I have set forth would not suffice to overturn our decision in Gilbert. Ante, at 18–20. Wrong. Gilbert upheld an otherwise comprehensive disability-benefits plan that singled pregnancy out for disfavor. The most natural reading of the Act overturns that decision, because it prohibits singling pregnancy out for disfavor.

The Court goes astray here because it mistakenly assumes that the Gilbert plan excluded pregnancy on “a neutral ground”—covering sicknesses and accidents but nothing else. Ante, at 19. In reality, the plan in Gilbert was not neutral toward pregnancy. It “place[d] . . . pregnancy in a class by itself,” treating it differently from “any other kind” of condition. 429 U. S., at 161 (Stevens, J., dissenting). At the same time that it denied coverage for pregnancy, it provided coverage for a comprehensive range of other conditions, including many that one would not necessarily call sicknesses or accidents—like “sport injuries, attempted suicides, . . . disabilities incurred in the commission of a crime or during a fight, and elective cosmetic surgery,” id., at 151 (Brennan, J., dissenting). What is more, the plan denied coverage even to sicknesses, if they were related to pregnancy or childbirth. Ibid. For that matter, the plan denied coverage to sicknesses that were unrelated to pregnancy or childbirth, if they were suffered during recovery from the birth of a child. Ibid. Gilbert, there can be no doubt, involved “the lone exclusion of pregnancy from [a] program.” Ibid. The most natural interpretation of the Act easily suffices to make that unlawful.


Dissatisfied with the only two readings that the words of the same-treatment clause could possibly bear, the Court decides that the clause means something in-between. It takes only a couple of waves of the Supreme Wand to produce the desired result. Poof!: The same-treatment clause means that a neutral reason for refusing to accommodate a pregnant woman is pretextual if “the employer’s policies impose a significant burden on pregnant workers.” Ante, at 21. Poof!: This is so only when the employer’s reasons “are not sufficiently strong to justify the burden.” Ibid.

How we got here from the same-treatment clause is anyone’s guess. There is no way to read “shall be treated the same”—or indeed anything else in the clause—to mean that courts must balance the significance of the burden on pregnant workers against the strength of the employer’s justifications for the policy. That is presumably why the Court does not even try to connect the interpretation it adopts with the text it purports to interpret. The Court has forgotten that statutory purpose and the presumption against superfluity are tools for choosing among competing reasonable readings of a law, not authorizations for making up new readings that the law cannot reasonably bear.

The fun does not stop there. Having ignored the terms of the same-treatment clause, the Court proceeds to bungle the dichotomy between claims of disparate treatment and claims of disparate impact. Normally, liability for disparate treatment arises when an employment policy has a “discriminatory motive,” while liability for disparate impact arises when the effects of an employment policy “fall more harshly on one group than another and cannot be justified by business necessity.” Teamsters, 431 U. S., at 336, n. 15. In the topsy-turvy world created by today’s decision, however, a pregnant woman can establish disparate treatment by showing that the effects of her employer’s policy fall more harshly on pregnant women than on others (the policies “impose a significant burden on pregnant workers,” ante, at 21) and are inadequately justified (the “reasons are not sufficiently strong to justify the burden,” ibid.). The change in labels may be small, but the change in results assuredly is not. Disparate-treatment and disparate-impact claims come with different standards of liability, different defenses, and different remedies. E.g., 42 U. S. C. §§1981a, 2000e–2(k). For example, plaintiffs in disparate-treatment cases can get compensatory and punitive damages as well as equitable relief, but plaintiffs in disparate impact cases can get equitable relief only. See §§1981a, 2000e–5(g). A sound reading of the same-treatment clause would preserve the distinctions so carefully made elsewhere in the Act; the Court’s reading makes a muddle of them.

But (believe it or not) it gets worse. In order to make sense of its conflation of disparate impact with disparate treatment, the Court claims that its new test is somehow “limited to the Pregnancy Discrimination Act context,” yet at the same time “consistent with” the traditional use of circumstantial evidence to show intent to discriminate in Title VII cases. Ante, at 22. A court in a Title VII case, true enough, may consider a policy’s effects and even its justifications—along with “ ‘all of the [other] surrounding facts and circumstances’ ”—when trying to ferret out a policy’s motive. Hazelwood School Dist. v. United States, 433 U. S. 299, 312 (1977) . The Court cannot possibly think, however, that its newfangled balancing test reflects this conventional inquiry. It has, after all, just marched up and down the hill telling us that the same-treatment clause is not (no-no!) “ ‘superfluous, void, or insignificant.’ ” Ante, at 17–18. If the clause merely instructed courts to consider a policy’s effects and justifications the way it considers other circumstantial evidence of motive, it would be superfluous. So the Court’s balancing test must mean something else. Even if the effects and justifications of policies are not enough to show intent to discriminate under ordinary Title VII principles, they could (Poof !) still show intent to discriminate for purposes of the pregnancy same-treatment clause. Deliciously incoherent.

And all of this to what end? The difference between a routine circumstantial-evidence inquiry into motive and today’s grotesque effects-and-justifications inquiry into motive, it would seem, is that today’s approach requires judges to concentrate on effects and justifications to the exclusion of other considerations. But Title VII already has a framework that allows judges to home in on a pol-icy’s effects and justifications—disparate impact. Under that framework, it is already unlawful for an employer to use a practice that has a disparate impact on the basis of a protected trait, unless (among other things) the employer can show that the practice “is job related . . . and consistent with business necessity.” §2000e–2(k)(1)(A)(i). The Court does not explain why we need (never mind how the Act could possibly be read to contain) today’s ersatz disparate-impact test, under which the disparate-impact element gives way to the significant-burden criterion and the business-necessity defense gives way to the sufficiently-strong-justification standard. Today’s decision can thus serve only one purpose: allowing claims that belong under Title VII’s disparate-impact provisions to be brought under its disparate-treatment provisions instead.


Justice Alito’s concurrence agrees with the Court’s rejection of both conceivable readings of the same-treatment clause, but fashions a different compromise between them. Under its approach, an employer may deny a pregnant woman a benefit granted to workers who perform similar tasks only on the basis of a “neutral business ground.” Ante, at 10 (opinion concurring in judgment). This requirement of a “business ground” shadows the Court’s requirement of a “sufficiently strong” justification, and, like it, has no footing in the terms of the same-treatment clause. As the concurrence understands the words “shall be treated the same,” an employer must give pregnant workers the same accommodations (not merely accommodations on the same terms) as other workers “who are similar in their ability or inability to work.” Ante, at 3–4. But the concurrence realizes that requiring the same accommodations to all who are similar in ability or inability to work—the only characteristic mentioned in the same-treatment clause—would “lead to wildly implausible results.” Ante, at 6, n. 3. To solve this problem, the concurrence broadens the category of characteristics that the employer may take into account. It allows an employer to find dissimilarity on the basis of traits other than ability to work so long as there is a “neutral business reason” for considering them—though it immediately adds that cost and inconvenience are not good enough reasons. Ante, at 7. The need to engage in this text-free broadening in order to make the concurrence’s interpretation work is as good a sign as any that its interpretation is wrong from the start.

*  *  *

My disagreement with the Court is fundamental. I think our task is to choose the best possible reading of the law—that is, what text and context most strongly suggest it conveys. The Court seems to think our task is to craft a policy-driven compromise between the possible readings of the law, like a congressional conference committee reconciling House and Senate versions of a bill.

Because Young has not established that UPS’s accommodations policy discriminates against pregnant women relative to others of similar ability or inability, see supra, at 2, she has not shown a violation of the Act’s same-treatment requirement. I would therefore affirm the judgment of the Court of Appeals for the Fourth Circuit.

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