Pregnant women won a somewhat surprising victory at the U.S. Supreme Court Wednesday. The court’s four liberals got help from Chief Justice John Roberts, who joined the majority opinion by Justice Stephen Breyer, and a surprise concurrence in the judgment from Justice Samuel Alito, who rarely crosses over to the liberal side.
Roberts and Alito may each have had his own reason for breaking conservative ranks.
At issue in the case was the Pregnancy Discrimination Act. That law prohibits discrimination based on pregnancy and childbirth. Then, in a separate provision, it requires employers to treat pregnant women the same “as other persons not so affected but similar in their ability or inability to work.”
Peggy Young is a UPS driver whose doctor told her not to lift more than 20 pounds during the first 20 weeks of her pregnancy and no more than 10 pounds after that. UPS ordinarily requires drivers to be able to lift 70 pounds unaided and 150 pounds with assistance. Young asked for an accommodation during her pregnancy. She pointed out that UPS makes accommodations for drivers who are injured on the job, who lose their Department of Transportation certification or who suffer from a disability covered by the Americans With Disabilities Act. Because they receive accommodations, she reasoned, it would be discrimination to deny the same accommodation to her.
UPS responded that it didn’t need to accommodate Young, because she didn’t fall into any of those three categories. UPS therefore was treating her the same as someone who wasn’t pregnant but also couldn’t lift 70 pounds. Such a person would lose his job, and so would Young.
Breyer’s opinion for the court rejected both Young’s approach and that of UPS. To follow Young’s approach, he said, would be to give pregnant women a kind of “most-favored-nation” status, under which if anyone was ever accommodated, pregnant women should get the same accommodation. To do what UPS wanted, however, would be to act as though the accommodation provision of the Pregnancy Discrimination Act added nothing to its general prohibition on discrimination against pregnant women.
Instead Breyer struck a pragmatic compromise, as is his wont. Applying a burden-shifting framework known to employment lawyers as “McDonnell Douglas” after the Supreme Court case in which it was first created, Breyer said that the pregnant woman could begin her discrimination case by showing that she had sought an accommodation and been denied while others were granted accommodation – the same way Young in fact began her case.
Then the burden will shift to the employer to explain why no accommodation was granted. The court said that the answer “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.” The employer will have to give a more substantive reason. Presumably employers would respond by explaining why they accommodate those that they in fact accommodate – say, because they are legally required to do so by some different law.
Now the burden will shift back to the pregnant plaintiff. She can, Breyer said, get the case before a jury “by providing evidence that the employer accommodates a large percentage of nonpregnant workers while failing to accommodate a large percentage of pregnant workers.” According to Breyer, a jury could reasonably conclude that UPS was discriminating against pregnant women, in part relying on the fact that UPS has “multiple” mechanisms for accommodating nonpregnant workers and no accommodation for pregnant ones.
Justice Antonin Scalia wrote a predictably strong dissent condemning the majority for making up a law that doesn’t appear in statute. Breyer’s opinion, Scalia wrote, “crafts … a new law that is splendidly unconnected with the text and even the legislative history of the Act.” He was joined by justices Clarence Thomas and Anthony Kennedy. But why did Roberts and Alito abandon the other conservatives?
Alito gave his reasons in a fascinating concurrence in the judgment. He dismissed the relevance of UPS’s accommodation of drivers injured on the job and drivers covered by the Americans With Disabilities Act, because UPS had “neutral reasons” for those accommodations. (UPS would have had to pay workers’ compensation for those injured on the job and was legally required to accommodate ADA-qualified workers.) But he balked when it came to drivers who lost their Department of Transportation certifications, a category that could include people injured off the job.
Alito thought that this smacked of discrimination, and wanted the trial court to allow a jury to consider whether UPS was in fact discriminating against pregnant women.
In a sense, Alito’s approach was even more liberal than that of the majority. If UPS couldn’t give a good reason to why it was accommodating those who lost Department of Transportation certification, he was willing for the court to find against UPS.
Alito’s approach can be explained by comparison to his opinion for the court in the Hobby Lobby case, where the accommodation sought is for religious dissenters under the Religious Freedom Restoration Act. There Alito, who strongly favors religious exemptions, essentially required the government to grant exemptions for every religious dissenter if it was prepared to make exceptions for any religious dissenter. Alito’s views on religious accommodation here turned him into a liberal on pregnancy discrimination.
As for Roberts, the clue lies in a throwaway sentence of Breyer’s opinion where he notes that in 2008, after Young’s case was brought, the Americans With Disabilities Act was amended to include impairment that substantially limits an individual’s ability to lift, stand or bend. The implication is that pregnant women who can’t lift heavy objects would now be protected by the ADA, rendering the decision Wednesday legally irrelevant. The change “may limit the future significance of our interpretation of the Act,” Breyer said.
Roberts, in other words, gave the liberals a victory that might have no relevance in the real world. He looked nonpartisan without cost. And that may well explain the result.
Noah Feldman, a Bloomberg View columnist, is a professor of constitutional and international law at Harvard and the author of six books, most recently “Cool War: The Future of Global Competition.”