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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, 2015]
Justice Breyer delivered the opinion of the
Court.
The Pregnancy Discrimination Act makes clear that Title VII's
prohibition against sex discrimination applies to discrimination
based on pregnancy. It also says that employers must treat "women
affected by pregnancy . . . the same for all employment-related
purposes . . . as other persons not so affected but similar in
their ability or in-ability to work." 42 U. S. C. 2000e(k). We must
decide how this latter provision applies in the context of an
employer's policy that accommodates many, but not all, workers with
nonpregnancy-related disabilities.
In our view, the Act requires courts to consider the extent to
which an employer's policy treats pregnant workers less favorably
than it treats nonpregnant workers similar in their ability or
inability to work. And here as in all cases in which an individual
plaintiff seeks to show disparate treatment through indirect
evidence it requires courts to consider any legitimate,
nondiscrimina-tory, nonpretextual justification for these
differences in treatment. See
McDonnell Douglas Corp. v.
Green, 411 U. S. 792, 802 (1973) . Ultimately the court must
determine whether the nature of the employer's policy and the way
in which it burdens pregnant women shows that the employer has
engaged in intentional discrimination. The Court of Appeals here
affirmed a grant of summary judgment in favor of the employer.
Given our view of the law, we must vacate that court's
judgment.
I
A
We begin with a summary of the facts. The petitioner, Peggy
Young, worked as a part-time driver for the respondent, United
Parcel Service (UPS). Her responsibilities included pickup and
delivery of packages that had arrived by air carrier the previous
night. In 2006, after suffering several miscarriages, she became
pregnant. Her doctor told her that she should not lift more than 20
pounds during the first 20 weeks of her pregnancy or more than 10
pounds thereafter. App. 580. UPS required drivers like Young to be
able to lift parcels weighing up to 70 pounds (and up to 150 pounds
with assistance).
Id., at 578. UPS told Young she could not
work while under a lifting restriction. Young consequently stayed
home without pay during most of the time she was pregnant and
eventually lost her employee medical coverage.
Young subsequently brought this federal lawsuit. We focus here
on her claim that UPS acted unlawfully in refusing to accommodate
her pregnancy-related lifting restriction. Young said that her
co-workers were willing to help her with heavy packages. She also
said that UPS accommodated other drivers who were "similar in their
. . . inability to work." She accordingly concluded that UPS must
accommodate her as well. See Brief for Petitioner 30 31
.
UPS responded that the "other persons" whom it had accommodated
were (1) drivers who had become disabled on the job, (2) those who
had lost their Department of Transportation (DOT) certifications,
and (3) those who suffered from a disability covered by the
Americans with Disabilities Act of 1990 (ADA), 104Stat. 327, 42 U.
S. C. 12101
et seq. UPS said that, since Young did not fall
within any of those categories, it had not discriminated against
Young on the basis of pregnancy but had treated her just as it
treated all "other" relevant "persons." See Brief for Respondent
34.
B
Title VII of the Civil Rights Act of 1964 forbids a covered
employer to "discriminate against any individual with respect to .
. . terms, conditions, or privileges of employment, because of such
individual's . . . sex." 78Stat. 253, 42 U. S. C. 2000e 2(a)(1). In
1978, Congress enacted the Pregnancy Discrimination Act, 92Stat.
2076, which added new language to Title VII's definitions
subsection. The first clause of the 1978 Act specifies that Title
VII's "ter[m] 'because of sex' . . . include[s] . . . because of or
on the basis of pregnancy, childbirth, or related medical
conditions." 2000e(k). The second clause says that
"women affected by pregnancy, childbirth, or related medical
conditions shall be treated the same for all employment-related
purposes . . . as other persons not so affected but similar in
their ability or inability to work . . . ."
Ibid.
This case requires us to consider the application of the second
clause to a
"disparate-treatment" claim a claim that an
employer intentionally treated a complainant less favorably than
employees with the "complainant's qualifications" but outside the
complainant's protected class.
McDonnell Douglas,
supra, at 802. We have said that "[l]iability in a
disparate-treatment case depends on whether the protected trait
actually motivated the employer's decision."
Raytheon Co. v.
Hernandez, 540 U. S. 44, 52 (2003) (ellipsis and internal
quotation marks omitted). We have also made clear that a plaintiff
can prove disparate treatment either (1) by direct evidence that a
workplace policy, practice, or decision relies expressly on a
protected characteristic, or (2) by using the burden-shifting
framework set forth in
McDonnell Douglas. See
Trans World
Airlines, Inc. v.
Thurston, 469 U. S. 111, 121 (1985)
.
In
McDonnell Douglas, we considered a claim of
discriminatory hiring. We said that, to prove disparate treatment,
an individual plaintiff must "carry the initial burden" of
"establishing a prima facie case" of discrimination by showing
"(i) that he belongs to a . . . minority; (ii) that he applied
and was qualified for a job for which the employer was seeking
applicants; (iii) that, despite his quali-fications, he was
rejected; and (iv) that, after hisrejection, the position remained
open and the employer continued to seek applicants from persons of
complainant's qualifications." 411 U. S., at 802.
If a plaintiff makes this showing, then the employer must have
an opportunity "to articulate some legitimate, non-discriminatory
reason for" treating employees outside the protected class better
than employees within the protected class.
Ibid. If the
employer articulates such a reason, the plaintiff then has "an
opportunity to prove by a preponderance of the evidence that the
legitimate reasons offered by the defendant [
i.e., the
employer] were not its true reasons, but were a pretext for
discrimination."
Texas Dept. of Community Affairs v.
Burdine, 450 U. S. 248, 253 (1981) .
We note that employment discrimination law also creates what is
called a "disparate-impact" claim. In evaluating a disparate-impact
claim, courts focus on the
effects of an employment
practice, determining whether they are unlawful irrespective of
motivation or intent. See
Raytheon,
supra, at 52 53;
see also
Ricci v.
DeStefano, 557 U. S.557, 578
(2009). But Young has not alleged a disparate-impact claim.
Nor has she asserted what we have called a "pattern-or-practice"
claim. See
Teamsters v.
United States, 431 U. S. 324,
359 (1977) (explaining that Title VII plaintiffs who allege a
"pattern or practice" of discrimination may establish a prima facie
case by "another means"); see also
id., at 357 (rejecting
contention that the "burden of proof in a pattern-or-practice case
must be equivalent to that outlined in
McDonnell
Douglas").
C
In July 2007, Young filed a pregnancy discrimination charge with
the Equal Employment Opportunity Commission (EEOC). In September
2008, the EEOC provided her with a right-to-sue letter. See 29 CFR
1601.28 (2014). Young then filed this complaint in Federal District
Court. She argued, among other things, that she could show by
direct evidence that UPS had intended to discriminate against her
because of her pregnancy and that, in any event, she could
establish a prima facie case of disparate treatment under the
McDonnell Douglas framework. See App. 60 62.
After discovery, UPS filed a motion for summary judgment. See
Fed. Rule Civ. Proc. 56(a). In reply, Young pointed to favorable
facts that she believed were either undisputed or that, while
disputed, she could prove. They include the following:
Young worked as a UPS driver, picking up and delivering packages
carried by air. Plaintiff's Memorandum in Opposition to Defendant's
Motion for Summary Judgment in No. 08 cv 02586 (D Md.), pp. 3 4
(hereinafter Memorandum).
Young was pregnant in the fall of 2006.
Id., at 15
16.
Young's doctor recommended that she "not be required to lift
greater than 20 pounds for the first 20 weeks of pregnancy and no
greater than 10 pounds thereafter." App. 580; see also Memorandum
17.
UPS required drivers such as Young to be able to "[l]ift, lower,
push, pull, leverage and manipulate . . . packages weighing up to
70 pounds" and to "[a]ssist in moving packages weighing up to 150
pounds." App. 578; see also Memorandum 5.
UPS' occupational health manager, the official "responsible for
most issues relating to employee health and ability to work" at
Young's UPS facility, App. 568 569, told Young that she could not
return to work during her pregnancy because she could not satisfy
UPS' lifting requirements, see Memorandum 17 18; 2011 WL 665321, *5
(D Md., Feb. 14, 2011).
The manager also determined that Young did not qualify for a
temporary alternative work assignment.
Ibid.; see also
Memorandum 19 20.
UPS, in a collective-bargaining agreement, had promised to
provide temporary alternative work assignments to employees "unable
to perform their normal work assignments due to an
on-the-job in-jury." App. 547 (emphasis added); see also
Memorandum 8, 45 46.
The collective-bargaining agreement also provided that UPS would
"make a good faith effort to comply . . . with requests for a
reasonable accommodation because of a permanent disability" under
the ADA. App. 548; see also Memorandum 7.
The agreement further stated that UPS would give "inside" jobs
to drivers who had lost their DOT certifications because of a
failed medical exam, a lost driver's license, or involvement in a
motor vehicle accident. See App. 563 565; Memorandum 8.
When Young later asked UPS' Capital Division Manager to
accommodate her disability, he replied that, while she was
pregnant, she was "too much of a liability" and could "not come
back" until she " 'was no longer pregnant.' "
Id., at
20.
Young remained on a leave of absence (without pay) for much of
her pregnancy.
Id., at 49.
Young returned to work as a driver in June 2007, about two
months after her baby was born.
Id., at 21, 61.
As direct evidence of intentional discrimination, Young relied,
in significant part, on the statement of the Capital Division
Manager (10 above). As evidence that she had made out a prima facie
case under
McDonnell Douglas, Young relied, in significant
part, on evidence showing that UPS would accommodate workers
injured on the job (7), those suffering from ADA disabilities (8),
and those who had lost their DOT certifications (9). That evidence,
she said, showed that UPS had a light-duty-for-injury policy with
respect to numerous "other persons," but not with respect to
pregnant workers. See Memorandum 29.
Young introduced further evidence indicating that UPS had
accommodated several individuals when they suffered disabilities
that created work restrictions similar to hers. UPS contests the
correctness of some of these facts and the relevance of others. See
Brief for Respondent 5, 6, 57. But because we are at the summary
judgment stage, and because there is a genuine dispute as to these
facts, we view this evidence in the light most favorable to Young,
the nonmoving party, see
Scott v.
Harris, 550 U. S.
372, 380 (2007) :
Several employees received accommodations while suffering
various similar or more serious disabilities incurred on the job.
See App. 400 401 (10 pound lifting limitation);
id., at 635
(foot injury);
id., at 637 (arm injury).
Several employees received accommodations following injury,
where the record is unclear as to whether the injury was incurred
on or off the job. See
id.,at 381 (recurring knee injury);
id., at 655 (ankle injury);
id., at 655 (knee
injury);
id., at 394 398 (stroke);
id., at 425, 636
637 (leg injury).
Several employees received "inside" jobs after losing their DOT
certifications. See
id., at 372 (DOT certification suspended
after conviction for driv-ing under the influence);
id., at
636, 647 (failed DOT test due to high blood pressure);
id.,
at 640 641 (DOT certification lost due to sleep
apneadiagnosis).
Some employees were accommodated despite the fact that their
disabilities had been incurred off the job. See
id., at 446
(ankle injury);
id., at 433, 635 636 (cancer).
According to a deposition of a UPS shop steward who had worked
for UPS for roughly a decade,
id., at 461, 463, "the only
light duty requested [due to physical] restrictions that became an
issue" at UPS "were with women who were pregnant,"
id., at
504.
The District Court granted UPS' motion for summary judgment. It
concluded that Young could not show intentional discrimination
through direct evidence. 2011 WL 665321, *10 *12. Nor could she
make out a prima facie case of discrimination under
McDonnell
Douglas. The court wrote that those with whom Young compared
herself those falling within the on-the-job, DOT, or ADA categories
were too different to qualify as "similarly situated
comparator[s]." 2011 WL 665321, *14. The court added that, in any
event, UPS had offered a legitimate, nondiscriminatory reason for
failing to accommodate pregnant women, and Young had not created a
genuine issue of material fact as to whether that reason was
pretextual.
Id., at *15.
On appeal, the Fourth Circuit affirmed. It wrote that "UPS has
crafted a pregnancy-blind policy" that is "at least facially a
'neutral and legitimate business practice,' and not evidence of
UPS's discriminatory animus toward pregnant workers." 707 F. 3d
437, 446 (2013). It also agreed with the District Court that Young
could not show that "similarly-situated employees outside the
protected class received more favorable treatment than Young."
Id., at 450. Specifically, it believed that Young was
different from those workers who were "disabled under the ADA"
(which then protected only those with permanent disabilities)
because Young was "not disabled"; her lifting limitation was only
"temporary and not a significant restriction on her ability to
perform major life activities."
Ibid. Young was also
different from those workers who had lost their DOT certifications
because "no legal obstacle stands between her and her work" and
because many with lost DOT certifications retained physical
(
i.e., lifting) capacity that Young lacked.
Ibid. And
Young was different from those "injured on the job because, quite
simply, her inability to work [did] not arise from an on-the-job
injury."
Id., at 450 451. Rather, Young more closely
resembled "an employee who injured his back while picking up his
infant child or . . . an employee whose lifting limitation arose
from her off-the-job work as a volunteer firefighter," neither of
whom would have been eligible for accommodation under UPS'
policies.
Id., at 448.
Young filed a petition for certiorari essentially asking us to
review the Fourth Circuit's interpretation of the Pregnancy
Discrimination Act. In light of lower-court uncertainty about the
interpretation of the Act, we granted the petition. Compare
Ensley-Gaines v.
Runyon, 100 F. 3d 1220, 1226 (CA6
1996), with
Urbano v.
Continental Airlines, Inc., 138
F. 3d 204, 206 208 (CA5 1998);
Reeves v.
Swift Transp.
Co., 446 F. 3d 637, 640 643 (CA6 2006);
Serednyj v.
Beverly Healthcare, LLC, 656 F. 3d 540, 547 552 (CA7 2011);
Spivey v.
Beverly Enterprises, Inc., 196 F. 3d 1309,
1312 1314 (CA11 1999).
D
We note that statutory changes made after the time of Young's
pregnancy may limit the future significance of our interpretation
of the Act. In 2008, Congress expanded the definition of
"disability" under the ADA to make clear that "physical or mental
impairment[s] that substantially limi[t]" an individual's ability
to lift, stand, or bend are ADA-covered disabilities. ADA
Amendments Act of 2008, 122Stat. 3555, codified at 42 U. S. C.
12102(1) (2). As interpreted by the EEOC, the new statutory
definition requires employers to accommodate employees whose
temporary lifting restrictions originate off the job. See 29 CFR
pt. 1630, App., 1630.2(j)(1)(ix). We express no view on these
statutory and regulatory changes.
II
The parties disagree about the interpretation of the Pregnancy
Discrimination Act's second clause. As we have said, see Part I B,
supra, the Act's first clause specifies that discrimination
" 'because of sex' " includes discrimination "because of . . .
pregnancy." But the meaning of the second clause is less clear; it
adds: "[W]omen affected by pregnancy, childbirth, or related
medical conditions shall be treated the same for all
employment-related purposes . . . as
other persons not so
affected but
similar in their ability or inability to work."
42 U. S. C. 2000e(k) (emphasis added). Does this clause mean that
courts must compare workers
only in respect to the work
limitations that they suffer? Does it mean that courts must ignore
all other similarities or differences between pregnant and
nonpregnant workers? Or does it mean that courts, when deciding who
the relevant "other persons" are, may consider other similarities
and differences as well? If so, which ones?
The differences between these possible interpretations come to
the fore when a court, as here, must consider a workplace policy
that distinguishes between pregnant and nonpregnant workers in
light of characteristics not related to pregnancy. Young poses the
problem directly in her reply brief when she says that the Act
requires giving "the same accommodations to an employee with a
pregnancy-related work limitation as it would give
that
employee if her work limitation stemmed from a different cause
but had a similar effect on her inability to work." Reply Brief 15.
Suppose the employer would not give "
that [
pregnant]
employee" the "same accommodations" as another employee, but
the employer's reason for the difference in treatment is that the
pregnant worker falls within a facially neutral category (for
example, individuals with off-the-job in-juries). What is a court
then to do?
The parties propose very different answers to this question.
Young and the United States believe that the second clause of the
Pregnancy Discrimination Act "requires an employer to provide the
same accommodations to workplace disabilities caused by pregnancy
that it provides to workplace disabilities that have other causes
but have a similar effect on the ability to work." Brief for
Petitioner 23. In other words, Young contends that the second
clause means that whenever "an employer accommodates only a subset
of workers with disabling conditions," a court should find a Title
VII violation if "pregnant workers who are similar in the ability
to work" do not "receive the same [accommodation] even if still
other non-pregnant workers do not receive accommodations."
Id., at 28.
UPS takes an almost polar opposite view. It contends that the
second clause does no more than define sex discrimination to
include pregnancy discrimination. See Brief for Respondent 25.
Under this view, courts would compare the accommodations an
employer provides to pregnant women with the accommodations it
provides to others
within a facially neutral category (such
as those with off-the-job injuries) to determine whether the
employer has violated Title VII. Cf.
post, at 4 (Scalia, J.,
dissenting) (hereinafter the dissent) (the clause "does not
prohibit denying pregnant women accommodations . . . on the basis
of an evenhanded policy").
A
We cannot accept either of these interpretations. Young asks us
to interpret the second clause broadly and, in her view, literally.
As just noted, she argues that, as long as "an employer
accommodates only a subset of workers with disabling conditions,"
"pregnant workers who are similar in the ability to work [must]
receive the same treatment even if still other nonpregnant workers
do not receive accommodations." Brief for Petitioner 28. She adds
that, because the record here contains "evidence that pregnant and
nonpregnant workers were not treated the same," that is the end of
the matter, she must win; there is no need to refer to
McDonnell
Douglas. Brief for Petitioner 47.
The problem with Young's approach is that it proves too much. It
seems to say that the statute grants pregnant workers a
"most-favored-nation" status. As long as an employer provides one
or two workers with an accommodation say, those with particularly
hazardous jobs, or those whose workplace presence is particularly
needed, or those who have worked at the company for many years, or
those who are over the age of 55 then it must provide similar
accommodations to
all pregnant workers (with comparable
physical limitations), irrespective of the nature of their jobs,
the employer's need to keep them working, their ages, or any other
criteria.
Lower courts have concluded that this could not have been
Congress' intent in passing the Pregnancy Discrimination Act. See,
e.g., Urbano, 138 F. 3d, at 206 208;
Reeves,
466 F. 3d, at 641;
Serednyj, 656 F. 3d, at 548 549;
Spivey, 196 F. 3d, at 1312 1313. And Young partially agrees,
for she writes that "the statute does not require employers to
give" to "pregnant workers all of the benefits and privileges it
extends to other" similarly disabled "employees when those benefits
and privileges are . . . based on the employee's tenure or position
within the company." Reply Brief 15 16; see also Tr. of Oral Arg.
22 ("[S]eniority, full-time work, different job classifications,
all of those things would be permissible distinctions foran
employer to make to differentiate among who gets benefits").
Young's last-mentioned concession works well with respect to
seniority, for Title VII itself contains a seniority defense, see
42 U. S. C. 2000e 2(h). Hence, seniority is not part of the
problem. But otherwise the most-favored-nation problem remains, and
Young's concession does not solve it. How, for example, should a
court treat special benefits attached to injuries arising out of,
say, extra-hazardous duty? If Congress intended to allow
differences in treatment arising out of special duties, special
service, or special needs, why would it not also have wantedcourts
to take account of differences arising out of special "causes" for
example, benefits for those who drive (and are injured) in
extrahazardous conditions?
We agree with UPS to this extent: We doubt that Congress
intended to grant pregnant workers an unconditional
most-favored-nation status. The language of the statute does not
require that unqualified reading. The second clause, when referring
to nonpregnant persons with similar disabilities, uses the
open-ended term "other persons." It does not say that the employer
must treat pregnant employees the "same" as "
any other
persons" (who are similar in their ability or inability to work),
nor does it otherwise specify
which other persons Congress
had in mind.
Moreover, disparate-treatment law normally permits an employer
to implement policies that are not intended to harm members of a
protected class, even if their implementation sometimes harms those
members, as long as the employer has a legitimate,
nondiscriminatory, nonpretextual reason for doing so. See,
e.g.,
Raytheon, 540 U. S., at 51 55;
Burdine, 450 U. S., at
252 258;
McDonnell Douglas, 411 U. S., at 802. There is no
reason to believe Congress intended its language in the Pregnancy
Discrimination Act to embody a significant deviation from this
approach. Indeed, the relevant House Report specifies that the Act
"reflect[s] no new legislative mandate." H. R. Rep. No. 95 948, pp.
3 4 (1978) (hereinafter H. R. Rep.). And the Senate Report states
that the Act was designed to "reestablis[h] the law as it was
understood prior to" this Court's decision in
General Electric
Co. v.
Gilbert, 429 U. S. 125 (1976) . S. Rep. No. 95
331, p. 8 (1978) (hereinafter S. Rep.). See
Gilbert, supra,
at 147 (Brennan, J., dissenting) (lower courts had held that a
disability plan that compensates employees for temporary
disabilities but not pregnancy violates Title VII); see also
AT&T Corp. v.
Hulteen, 556 U. S. 701, 717, n. 2
(2009) (Ginsburg, J., dissenting).
B
Before Congress passed the Pregnancy Discrimination Act, the
EEOC issued guidance stating that "[d]isabilities caused or
contributed to by pregnancy . . . are, for all job-related
purposes, temporary disabilities" and that "the availability of . .
. benefits and privileges . . . shall be applied to disability due
to pregnancy or childbirth on the same terms and conditions as they
are applied to other temporary disabilities." 29 CFR 1604.10(b)
(1975). Indeed, as early as 1972, EEOC guidelines provided:
"Disabilities caused or contributed to by pregnancy . . . are, for
all job-related purposes, temporary disabilities and should be
treated as such under any health or temporary disability insurance
or sick leave plan available in connection with employment." 37
Fed. Reg. 6837 (1972) (codified in 29 CFR 1604.10(b) (1973)).
Soon after the Act was passed, the EEOC issued guidance
consistent with its pre-Act statements. The EEOC explained:
"Disabilities caused or contributed to by pregnancy . . . for all
job-related purposes, shall be treated the same as disabilities
caused or contributed to by other medical conditions." See
1604.10(b) (1979). Moreover, the EEOC stated that "[i]f other
employees temporarily unable to lift are relieved of these
functions, pregnant employees also unable to lift must be
temporarily relieved of the function." 29 CFR pt. 1604, App., p.
918.
This post-Act guidance, however, does not resolve the ambiguity
of the term "other persons" in the Act's second clause. Rather, it
simply tells employers to treat pregnancy-related disabilities like
nonpregnancy-related disabilities, without clarifying how that
instruction should be implemented when an employer does not treat
all nonpregnancy-related disabilities alike.
More recently in July 2014 the EEOC promulgated an additional
guideline apparently designed to address this ambiguity. That
guideline says that "[a]n employer may not refuse to treat a
pregnant worker the same as other employees who are similar in
their ability or inability to work by relying on a policy that
makes distinctions based on the source of an employee's limitations
(e.g., a policy of providing light duty only to workers injured on
the job)." 2 EEOC Compliance Manual 626 I(A)(5), p. 626:0009 (July
2014). The EEOC also provided an example of disparate treatment
that would violate the Act:
"An employer has a policy or practice of providing light duty,
subject to availability, for any employee who cannot perform one or
more job duties for up to 90 days due to injury, illness, or a
condition that would be a disability under the ADA. An employee
requests a light duty assignment for a 20 pound lifting restriction
related to her pregnancy. The em-ployer denies the light duty
request."
Id., at 626:0013, Example 10.
The EEOC further added that "an employer may not deny light duty
to a pregnant employee based on a policy that limits light duty to
employees with on-the-job injuries."
Id., at 626:0028.
The Solicitor General argues that we should give special, if not
controlling, weight to this guideline. He points out that we have
long held that "the rulings, interpretations and opinions" of an
agency charged with the mission of enforcing a particular statute,
"while not controlling upon the courts by reason of their
authority, do constitute a body of experience and informed judgment
to which courts and litigants may properly resort for guidance."
Skidmore v.
Swift & Co., 323 U. S. 134, 140
(1944) . See Brief for United States as
Amicus Curiae
26.
But we have also held that the "weight of such a judgment in a
particular case will depend upon the thoroughness evident in its
consideration, the validity of its reasoning, its consistency with
earlier and later pronouncements, and all those factors that give
it power to persuade, if lacking power to control."
Skidmore,
supra, at 140. These qualifications are
relevant here and severely limit the EEOC's July 2014 guidance's
special power to persuade.
We come to this conclusion not because of any agency lack of
"experience" or "informed judgment." Rather, the difficulties are
those of timing, "consistency," and "thoroughness" of
"consideration." The EEOC promulgated its 2014 guidelines only
recently, after this Court had granted certiorari in this case. In
these circumstances, it is fair to say that the EEOC's current
guidelines take a position about which the EEOC's previous
guidelines were silent. And that position is inconsistent with
positions forwhich the Government has long advocated. See Brief for
Defendant-Appellee in
Ensley-Gaines v.
Runyon, No. 95
1038 (CA6 1996), pp. 26 27 (explaining that a reading of the Act
like Young's was "simply incorrect" and "runs counter" to this
Court's precedents). See also Brief for United States as
Amicus
Curiae 16, n. 2 ("The Department of Justice, on behalf of the
United States Postal Service, has previously taken the position
that pregnant employees with work limitations are not similarly
situated to employees with similar limitations caused by on-the-job
injuries"). Nor does the EEOC explain the basis of its latest
guidance. Does it read the statute, for example,as embodying a
most-favored-nation status? Why has it now taken a position
contrary to the litigation positionthe Government previously took?
Without furtherexplanation, we cannot rely significantly on the
EEOC's determination.
C
We find it similarly difficult to accept the opposite
interpretation of the Act's second clause. UPS says that the second
clause simply defines sex discrimination to include pregnancy
discrimination. See Brief for Respondent 25. But that cannot be
so.
The first clause accomplishes that objective when it expressly
amends Title VII's definitional provision to make clear that Title
VII's words "because of sex" and "on the basis of sex" "include,
but are not limited to, because of or on the basis of pregnancy,
childbirth, or related medical conditions." 42 U. S. C. 2000e(k).
We have long held that " 'a statute ought, upon the whole, to be so
construed that, if it can be prevented, no clause' " is rendered "
'superfluous, void, or insignificant.' "
TRW Inc. v.
Andrews, 534 U. S. 19, 31 (2001) (quoting
Duncan v.
Walker, 533 U. S. 167, 174 (2001) ). But that is what UPS'
interpretation of the second clause would do.
The dissent, basically accepting UPS' interpretation, says that
the second clause is not "superfluous" because it adds "clarity."
Post, at 4 5 (internal quotation marks omitted). It makes
"plain," the dissent adds, that unlawful discrimination "includes
disfavoring pregnant women relative to other workers of similar
inability to work."
Post, at 5. Perhaps we fail to
understand.
McDonnell Douglas itself makes clear that courts
normally consider how a plaintiff was treated relative to other
"persons of [the plaintiff's] qualifications" (which here include
disabilities). 411 U. S., at 802. If the second clause of the Act
did not exist, we would still say that an employer who disfavored
pregnant women relative to other workers of similar ability or
inability to work had engaged in pregnancy discrimination. In a
word, there is no need for the "clarification" that the dissent
suggests the second sentence provides.
Moreover, the interpretation espoused by UPS and the dissent
would fail to carry out an important congressional objective. As we
have noted, Congress' "unambiguou[s]" intent in passing the Act was
to overturn "both the holding and the reasoning of the Court in the
Gilbert decision."
Newport News Shipbuilding & Dry
Dock Co. v.
EEOC, 462 U. S. 669, 678 (1983) ; see also
post, at 6 (recognizing that "the object of the Pregnancy
Discrimination Act is to displace this Court's conclusion in
[
Gilbert]"). In
Gilbert, the Court considered a
company plan that provided "nonoccupational sickness and accident
benefits to all employees" without providing "disability-benefit
payments for any absence due to pregnancy." 429 U. S., at 128, 129.
The Court held that the plan did not violate Title VII; it did not
discriminate on the basis of sex because there was "no risk from
which men are protected and women are not."
Id., at 138
(internal quotation marks omitted). Although pregnancy is "confined
to women," the majority believed it was not "comparable in all
other respects to [the] diseases or disabilities" that the plan
covered.
Id., at 136. Specifically, the majority explained
that pregnancy "is not a 'disease' at all," nor is it necessarily a
result of accident.
Ibid. Neither did the majority see the
distinction theplan drew as "a subterfuge" or a "pretext" for
engaging in gender-based discrimination.
Ibid. In short, the
Gilbert majority reasoned in part just as the dissent
reasons here. The employer did "not distinguish between pregnant
women and others of similar ability or inability
because of
pregnancy." Post, at 2. It distinguished between them on a
neutral ground
i.e., it accommodated only sicknesses and
accidents, and pregnancy was neither of those. See 429 U. S., at
136.
Simply including pregnancy among Title VII's protected traits
(
i.e., accepting UPS' interpretation) would not overturn
Gilbert in full in particular, it would not respond to
Gilbert's determination that an employer can treat pregnancy
less favorably than diseases or disabilities resulting in a similar
inability to work. As we explained in
California Fed. Sav. &
Loan Assn. v.
Guerra, 479 U. S. 272 (1987) , "the first
clause of the [Act] reflects Congress' disapproval of the reasoning
in
Gilbert" by "adding pregnancy to the definition of sex
discrimination prohibited by Title VII."
Id., at 284. But
the second clause was intended to do more than that it "was
intended to overrule the holding in
Gilbert and to
illustrate how discrimination against pregnancy is to be remedied."
Id., at 285. The dissent's view, like that of UPS', ignores
this precedent.
III
The statute lends itself to an interpretation other than those
that the parties advocate and that the dissent sets forth. Our
interpretation minimizes the problems we have discussed, responds
directly to
Gilbert, and is consistent with longstanding
interpretations of Title VII.
In our view, an individual pregnant worker who seeks to show
disparate treatment through indirect evidence may do so through
application of the
McDonnell Douglas framework. That
framework requires a plaintiff to make out a prima facie case of
discrimination. But it is "not intended to be an inflexible rule."
Furnco Constr. Corp. v.
Waters, 438 U. S. 567, 575
(1978) . Rather, an individual plaintiff may establish a prima
facie case by "showing actions taken by the employer from which one
can infer, if such actions remain unexplained, that it is more
likely than not that such actions were based on a discriminatory
criterion illegal under" Title VII.
Id., at 576 (internal
quotation marks omitted). The burden of making this showing is "not
onerous."
Burdine, 450 U. S., at 253. In particular, making
this showing is not as burdensome as succeeding on "an ultimate
finding of fact as to" a discriminatory employment action.
Furnco,
supra, at 576. Neither does it require the
plaintiff to show that those whom the employer favored and those
whom the employer disfavored were similar in all but the protected
ways. See
McDonnell Douglas, 411 U. S., at 802 (burden met
where plaintiff showed that employer hired other "qualified"
individuals outside the protected class);
Furnco,
supra, at 575 577 (same);
Burdine,
supra, at
253 (same). Cf.
Reeves v.
Sanderson Plumbing Products,
Inc., 530 U. S. 133, 142 (2000) (similar).
Thus, a plaintiff alleging that the denial of an accommodation
constituted disparate treatment under the Pregnancy Discrimination
Act's second clause may make out a prima facie case by showing, as
in
McDonnell Douglas, that she belongs to the protected
class, that she sought accommodation, that the employer did not
accommodate her, and that the employer did accommodate others
"similar in their ability or inability to work."
The employer may then seek to justify its refusal to accommodate
the plaintiff by relying on "legitimate, nondiscriminatory" reasons
for denying her accommodation. 411 U. S., at 802. But, consistent
with the Act's basic objective, that 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 ("similar in their
ability or inability to work") whom the employer accommodates.
After all, the employer in
Gilbert could in all likelihood
have made just such a claim.
If the employer offers an apparently "legitimate,
non-discriminatory" reason for its actions, the plaintiff may in
turn show that the employer's proffered reasons are in fact
pretextual. We believe that the plaintiff may reach a jury on this
issue by providing sufficient evidence that the employer's policies
impose a significant burden on pregnant workers, and that the
employer's "legitimate, nondiscriminatory" reasons are not
sufficiently strong to justify the burden, but rather when
considered along with the burden imposed give rise to an inference
of intentional discrimination.
The plaintiff can create a genuine issue of material fact as to
whether a significant burden exists by providing evidence that the
employer accommodates a large percentage of nonpregnant workers
while failing to accommodate a large percentage of pregnant
workers. Here, for example, if the facts are as Young says they
are, she can show that UPS accommodates most nonpregnant employees
with lifting limitations while categorically failing to accommodate
pregnant employees with lifting limitations. Young might also add
that the fact that UPS has multiple policies that accommodate
nonpregnant employees with lifting restrictions suggests that its
reasons for failing to accommodate pregnant employees with lifting
restrictions are not sufficiently strong to the point that a jury
could find that its reasons for failing to accommodate preg-nant
employees give rise to an inference of intentional
discrimination.
This approach, though limited to the Pregnancy Discrimination
Act context, is consistent with our longstanding rule that a
plaintiff can use circumstantial proof to rebut an employer's
apparently legitimate, nondiscriminatory reasons for treating
individuals within a protected class differently than those outside
the protected class. See
Burdine,
supra, at 255, n.
10. In particular, it is hardly anomalous (as the dissent makes it
out to be, see
post, at 8 9) that a plaintiff may rebut an
employer's proffered justifications by showing how a policy
operates in practice. In
McDonnell Douglas itself, we noted
that an employer's "general policy and practice with respect to
minority employment" including "statistics as to" that policy and
practice could be evidence of pretext. 411 U. S., at 804 805.
Moreover, the continued focus on whether the plaintiff has
introduced sufficient evidence to give rise to an inference of
intentional discrimination avoids confusing the
disparate-treatment and disparate-impact doctrines, cf.
post, at 8 10.
Our interpretation of the Act is also, unlike the dissent's,
consistent with Congress' intent to overrule
Gilbert's
reasoning and result. The dissent says that "[i]f 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."
Post, at 2. This logic would have
found no problem with the employer plan in
Gilbert, which
"denied an accommodation" to pregnant women on the same basis as it
denied accommodations to other employees
i.e., it
accommodated only sicknesses and accidents, and pregnancy was
neither of those. See Part II C,
supra. In arguing to the
contrary, the dissent's discussion of
Gilbert relies
exclusively on the opinions of the dissenting Justices in that
case. See
post, at 6 7. But Congress' intent in passing the
Act was to overrule the
Gilbert majority opinion, which
viewed the employer's disability plan as denying coverage to
pregnant employees on a neutral basis.
IV
Under this interpretation of the Act, the judgment of the Fourth
Circuit must be vacated. A party is entitled to summary judgment if
there is "no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law." Fed. Rule Civ. Proc.
56(a). We have already outlined the evidence Young introduced. See
Part I C,
supra. Viewing the record in the light most
favorable to Young, there is a genuine dispute as to whether UPS
provided more favorable treatment to at least some employees whose
situation cannot reasonably be distinguished from Young's. In other
words, Young created a genuine dispute of material fact as to the
fourth prong of the
McDonnell Douglas analysis.
Young also introduced evidence that UPS had three separate
accommodation policies (on-the-job, ADA, DOT). Taken together,
Young argued, these policies significantly burdened pregnant women.
See App. 504 (shop steward's testimony that "the only light duty
requested [due to physical] restrictions that became an issue" at
UPS "were with women who were pregnant"). The Fourth Circuit did
not consider the combined effects of these policies, nor did it
consider the strength of UPS' justifications for each when
combined. That is, why, when the employer accommodated so many,
could it not accommodate pregnant women as well?
We do not determine whether Young created a genuine issue of
material fact as to whether UPS' reasons for having treated Young
less favorably than it treated these other nonpregnant employees
were pretextual. We leave a final determination of that question
for the Fourth Circuit to make on remand, in light of the
interpretation of the Pregnancy Discrimination Act that we have set
out above.
* * *
For the reasons above, we vacate the judgment of the Fourth
Circuit and remand the case for further proceedings consistent with
this opinion.
It is so ordered.
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