Thursday, April 28, 2016

Legg v. Ulster County: When is the failure to accommodate pregnancy intentionally discriminatory?

In Legg v. Ulster County, the United States Court of Appeals for the Second Circuit held that Ann Marie Legg, a corrections officer, was entitled to have a jury decide whether she was subjected to unlawful pregnancy discrimination when the defendant denied her request for light duty. The Legg decision is among the first to apply the special framework created by the Supreme Court in Young v. United Parcel Service, 135 S. Ct. 1338 (2015), for establishing pregnancy-based disparate treatment under the Pregnancy Discrimination Act. As discussed below, I think the Second Circuit misinterpreted Young by failing to focus on the ultimate issue of discriminatory intent.

In Young, the Supreme Court explained that "[l]iability in a disparate-treatment case depends on whether the protected trait actually motivated the employer's decision." A plaintiff can prevail by relying on the framework established in McDonnell Douglas Corp. v. Green to show that the "legitimate reasons offered by the defendant [i.e., the employer] were not its true reasons, but were a pretext for discrimination." In a claim of disparate treatment based on pregnancy, a plaintiff can create a jury issue as to pretext through 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 Court concluded that Peggy Young had created a jury issue as to significant burden by providing evidence that UPS accommodated a large percentage of non-pregnant workers but failed to accommodate a large percentage of pregnant workers. A jury could further find that, because UPS had multiple policies for accommodating non-pregnant employees with lifting limitations, its reasons for not also accommodating pregnant employees were not sufficiently strong, thereby giving rise to an inference of intentional discrimination.
Although this framework looks a bit like a hybrid that blends disparate treatment and disparate impact analysis, the Court stated that "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."

This last point strikes me as crucial. In contrast to Title VII protections against religious discrimination, Title VII does not impose any affirmative obligation on employers to accommodate pregnancy, only that employers not treat pregnancy less favorably than other similarly limiting conditions. In Young, the Court rejected an interpretation of the Pregnancy Discrimination Act that grants pregnant workers a "most-favored-nation" status. Because the ultimate issue is whether the employer intentionally discriminated based on pregnancy, application of the Young framework must be with an eye towards answering this question.

In Legg, the defendant had a single policy that granted light duty to corrections officers who were injured on the job. Moreover, the policy was based on a state law requiring municipalities to continue to pay corrections officers if they are injured on the job but not if they become unable to work for other reasons. The Second Circuit concluded that because the state law did not prevent the defendant from providing the same accommodations to pregnant employees, a reasonable jury could find that compliance with state law was "insufficient reason for denying accommodation to pregnant employees."

In reaching this conclusion, the Second Circuit seems to have overlooked the requirement that the insufficiency of the employer's reason give rise to an inference of intentional pregnancy discrimination. If the defendant adopted its single light-duty policy because of a state law requirement, then that seems to establish that the employer did not intend to discriminate against pregnant workers in making a certain class of employees eligible for light duty. Although the defendant did not extend the benefit to pregnant employees, it also did not extend the benefit to any other non-pregnant workers either. Consequently, there is no more reason to infer that the defendant intended to discriminate against pregnant workers than to infer that it intended to discriminate against non-pregnant workers excluded under its policy.

By contrast, in Young, the employer had multiple policies that granted light duty for a variety of reasons, none of them pregnancy. In such circumstances, where the employer accommodates multiple disparate classes of employees for disparate reasons, it may be reasonable to ask why the employer does not also accommodate pregnant workers, and to infer that the failure to include pregnancy reflects intentional discrimination.

Thus, as illustrated in Young, there may be a tipping point where accommodating numerous classes of employees gives rise to an inference that not also accommodating pregnant employees is grounded in intentional discrimination. While reasonable minds can disagree about when that tipping point is reached, I think it is hard to dispute that Ulster County did not come close to reaching that tipping point merely by accommodating workers injured on the job in compliance with state law.

Finally, although I disagree with the Second Circuit's application of Young, I don't mean to take issue with other aspects of the Legg decision. For instance, the court concluded that the plaintiff had presented enough evidence to prevail under the traditional McDonnell Douglas framework based on evidence of "significant inconsistencies in the employer's justification."

This blog reflects the views solely of its author. It is not intended, and should not be regarded, as legal advice on how to analyze any particular set of facts.