Last week, the U.S. Supreme Court decided one of the most anticipated cases in the court’s docket this year — at least for employment lawyers — in Young v. UPS. There’s been lots of bytes uploaded talking about the case from a federal level. Much of it is straightforward — in the sense that everyone is trying to figure out how the court’s decision will work in practice.
The crux of the Court’s decision is that pregnancy discrimination cases will now be analyzed using a familiar three-part test that the court uses in other discrimination cases. (It’s called the McDonnell-Douglas test and I’ve talked about it on the blog before.) From an employer perspective, that’s kind of boring.
Few non-lawyers are likely to stick around for its dry details, in which Justice Stephen Breyer laid out a balancing test mushy enough in its liberalism to win over Chief Justice Roberts and even Justice Alito. (Readers interested in such matters as McDonnell-Douglas burden-shifting and the selection of similarly situated co-worker “comparators” should follow up at the specialty employment-law blogs.) The practical impact of the case is also somewhat limited by Congress’s having further liberalized pregnancy accommodation law in plaintiffs’ favor after the events being sued over.
In coming to its conclusion, the majority in Young rejected each of the arguments raised by the employee, the employer and the EEOC. You don’t see that happen all that much in discrimination cases.
And as Jeff Nowak pointed out on the FMLA Insights blog, all the court really did was create the “potential for pregnant employees to secure workplace accommodations by endorsing a balancing test to determine under what circumstances a pregnant employee can prevail on a failure to provide workplace accommodations.”
What’s the problem with this approach? Jon Hyman at Ohio Employer’s Law Blog says Justice Scalia pinpoints it. “By permitting a pregnant worker to establish pretext by demonstrating a disadvantage presented by the application of a facially neutral work rule, the majority’s opinion allows one to establish intentional disparate treatment by demonstrating a disparate impact.”
Of course, most employers will probably never get there because employers will end up accommodating pregnant employees in many instances.
What does this mean for Connecticut employers? Well, as I’ve talked about earlier this month, Connecticut employers have to worry first about the state anti-discrimination laws which are broader than the federal ones.
Connecticut law for example may require an employer to transfer a pregnant employee to a temporary position if she reasonably believes her current position may cause harm to her or her fetus.
So, for employers, the notion that you may have to provide some type of accommodation to your pregnant employees should not be a new concept. What exactly that accommodation may (or may not) be will depend on several factors including how you treat other employees. Consistency in your approach remains key. Being considerate and mindful of your obligations will go a long way to reducing your legal risks.