Sharon Gustafson discusses with Andrew Witko, an associate at the Employment Law Group, her experience as counsel for Peggy Young in the pregnancy discrimination case Young v. UPS.
Young v. UPS asked “whether or not the Pregnancy Discrimination Act requires an employer to provide the same work accommodations to an employee with pregnancy-related work limitations as to employees with similar, but non-pregnancy related work limitations.”
The Supreme Court ruled 6-3 in favor of Young. Enjoy the interview!
AW: Can you tell me a little about your background and practice?
SG: I graduated from Georgetown Law School in 1991. I then worked for the Labor and Employment Law group at Jones Day for about four and a half years. Since then, I have worked primarily in plaintiff side employment law, though I also do some work on the management side. One of the areas of my practice is discrimination and Peggy Young came to me almost nine years ago with a discrimination claim. I’ve spent a lot of my time representing her ever since.
AW: How did you come to represent Peggy Young?
SG: Well, I was actually talking about this with Peggy recently. She said that someone gave her my name and number, but she can’t remember who it was. <laughs> I rarely know how my clients find me.
AW: Can you give me a little bit of background on the issues of Ms. Young’s case?
SG: Sure. Peggy had been out of work for a bit trying to get pregnant through IVF and wanted to return to work. UPS told her that if she wanted to return pregnant, they’d need a doctor’s note that outlined her restrictions. Peggy didn’t think that she had any restrictions, but went to her doctor’s note and reported what UPS had requested. Her midwife wrote a note recommending that she not lift over twenty pounds for the duration of her pregnancy.
AW: So, what happened when Ms. Young came in with her doctor’s note?
SG: Peggy took her note to the health manager who told her that the company does not give light duty for pregnancy. In essence, they told her that she had to go home until she was no longer pregnant. Peggy couldn’t believe it. She appealed to the highest level manager in her division who told her the same thing – that she needed to go home. Her regular job was delivering light weight envelopes. She almost never had anything over twenty pounds, and she couldn’t believe that she wasn’t being permitted to work.
AW: And, that’s when Ms. Young came to see you?
SG: Actually, Peggy came to me complaining that UPS would not let her work and would not permit her to get short term disability benefits. When I asked her whether going out on disability was what she really wanted, she told me, “No. I just want to be able to work.”
One of the first things we did was to get the disability documentation from the company and found out that the company really did need to give her disability benefits. But, by then, it was too late. We filed a pregnancy discrimination claim with the EEOC. We didn’t get anywhere and then filed in district court.
AW: What happened at the District Court level?
SG: The District Court dismissed Peggy’s claim on summary judgment, saying that we had no evidence of pregnancy discrimination even though the company said, “Go home until you’re no longer pregnant.” UPS only gave accommodations in three situations: to an employee injured on the job, to an employee disabled under the ADA, and to people who had some medical condition that made them unable to obtain their CDL certification. UPS argued that its accommodations were “pregnancy blind,” but it looked to me like the only people excluded from the accommodation process were those with pregnancy related limitations.
So, we argued long and hard at the District Court level and lost. The Fourth Circuit then affirmed the District Court’s decision and we filed cert with the Supreme Court.
AW: Talk to me about that process of filing with the Supreme Court?
SG: I really wanted to bring this to the Supreme Court, but it was a very daunting proposition. Within twenty-four hours of receiving the Fourth Circuit’s decision, I received a call from Sam Bagenstos from the University of Michigan.
Sam had clerked for Justice Ginsburg and had argued a couple of cases before the Supreme Court. I was extremely happy to have received his call. Sam said to me, “Tell me that you’re going to appeal this.” I told him that I wanted to but that I found the process daunting. He offered his assistance, and I gratefully accepted.
AW: When did you file with the Supreme Court?
SG: In 2013. Sam [Bagenstos] was really excellent in supporting Peggy and working collaboratively with me. Sam handled the oral argument.
AW: How did the Supreme Court rule?
SG: The Supreme Court basically said that a company cannot protect itself from liability for pregnancy discrimination simply by crafting purportedly “pregnancy neutral” policies. Instead, the jury should be permitted to look at the collection of these policies and ask themselves, “Why if an employer can accommodate so many, could it not also accommodate pregnant women?” I think that this was absolutely the right outcome.
The Supreme Court made it clear that the statute, itself, gives us the plaintiff’s prima facie burden. Peggy needed an accommodation, UPS wouldn’t give it to her; and it did give such an accommodation to others who were similar in their ability or inability to work. That’s the language of the statute – that employers must treat pregnant women the same as others with a similar ability or inability to work.
AW: Well what would happen once Peggy made her prima facie case?
SG: Obviously, the employer can still defend itself by offering a legitimate non-discriminatory reason for the differential treatment. Then it would have been Peggy’s obligation to prove pretext. Because the court said that the reason cannot ordinarily be cost or convenience, I don’t think that UPS had a legitimate, non-discriminatory reason for its differential treatment.
AW: What impact will the ruling have on future litigants?
SG: I don’t know what impact it will have on employees outside of the pregnancy context, but I do know that within the context of pregnancy discrimination, it’s already having an impact.
A couple of published decisions have come out where courts have cited this case and refused to dismiss on summary judgment cases that I believe would have otherwise been dismissed. Courts are getting it now. They can’t only look to see whether the employees who are treated better than pregnant women all are protected by “pregnancy neutral” policies.
This case affects pregnant women who need accommodations. These tend to be workers in the health industry, blue collar workers, or other people doing jobs with some heavy lifting – such as truck drivers or constructions workers. It will also help police officers who need accommodations for other reasons. These people will be helped greatly.
AW: What do you expect to cover in your panel at this year’s Changing Currents?
SG: I’ll be talking about what counsel for employees and employees should learn from this case and how it should affect the way that they advise their clients.