Working for Justice

Q&A with Professor Schoenbaum

Posted June 4th, 2015 by in Gender Discrimination and Harassment.

Naomi-SchoenbaumRegular readers of this blog are very familiar with Young v. UPS, a Supreme Court case about pregnancy discrimination.  Here at Shattering the Ceiling we are excited about the case – and about the outcome.  My colleagues have written here about why accommodating pregnant women is good for American families – and good for business and about why the Supreme Court’s decision in the case was good news for working women.  Before the Court announced its decision, I interviewed Plaintiff Peggy Young’s lead lawyer Sharon Gustafson and GW Professor Naomi Schoenbaum.  Professor Schoenbaum explained that she thought the importance of the decision was likely overblown, so I was interested in revisiting this topic with her again after the Court announced its decision.

Kate

For readers who may not follow these issues as closely as we do, can you explain what the Court decided in Young v. UPS?

 

Professor Schoenbaum

The Court had to consider whether, under the Pregnancy Discrimination Act, an employer who provides accommodations to some of its employees, but not all of them, must also accommodate pregnant workers.  The Court rejected the argument that employers have to accommodate pregnant women simply because they give some accommodations to some non-pregnant workers.  The majority determined that the Pregnancy Discrimination Act requires employers to do more than simply not discriminate against pregnant women.

 

The Court rejiggered the standard that courts use in these cases to make it easier for pregnant women to prove discrimination.  Typically, employees must show evidence that the employer had a discriminatory intent, and the Court’s decision in Young makes it easier for employees to use circumstantial evidence to show this.

 

Kate

In other words, evidence that an employer accommodated a lot of workers, but not pregnant workers, may indicate that that the employer was intentionally discriminating.

 

You have explained earlier that the importance of the Young decision was overblown, in part because of changes made to another law, the Americans With Disabilities Act, and in part because a lot of states are enacting laws that require employers to accommodate pregnant workers.  Having reviewed the Court’s opinion, do you continue to think this?

 

Professor Schoenbaum

Yes, with a slight modification to what I said before the Court issued the opinion.  First, it remains true that the amendments to the Americans with Disabilities Act may require employers to accommodate pregnant women anyway, so the Court’s interpretation of what the Pregnancy Discrimination Act requires may be less important.  However, in light of Young, these two laws together will make it even easier for pregnant women to provide discrimination.  Young made it easier for pregnant women to show discrimination by showing that they were denied accommodations that were given to others, and the amendments to the ADA require employers to accommodate a broader set of non-pregnant workers.  Therefore, in light of the ADA amendments, the Court’s decision in Young will make it even easier for pregnant women to show discrimination.

 

Second, it remains true that several states are enacting laws requiring accommodations for pregnant workers, and, as you know, they have received remarkable, notable bipartisan support from politicians on both sides who would otherwise be strange bedfellows.  While this is happening at the state level, at the federal level there is uniform opposition from Republicans to the federal Pregnant Workers Fairness Act.  So, absent Young, we cannot be confident that the issue of accommodating pregnant women would be addressed at a national level.

 

Kate

Relatedly, you have noted that you believe there are too many employment discrimination tests or ways for courts to analyze whether someone was discriminated against.  Can you explain what you mean by that?

 

Professor Schoenbaum

Courts have multiple ways to analyze employment discrimination cases.  They use what’s called the “McDonnell Douglas” test for disparate treatment cases and other tests for disparate impact cases.  I think that in some ways all of these tests actually make it harder for employees to get their cases to a jury.

 

Kate

Instead, courts use these tests to kick out the employees’ cases on summary judgment, and the employees’ discrimination lawsuits stop there.

 

Professor Schoenbaum

This is a problem not of intent but of implementation.  In fact, the Supreme Court developed the McDonnell Douglas test out of a recognition that it is often hard for an employee to prove the intent of the employer.  Discrimination cases are about proving a state of mind, which is hard to prove – not like proving who was at fault in a car accident.  So the McDonnell Douglas test was the Supreme Court’s attempt to design a test that should have made it easier for employees’ claims to get to a jury and prevail.  But lower courts have applied this test so mechanically and have used the test more often to throw out employees’ claims rather than to make them easier to proceed.

 

In light of this, it will be interesting to see how lower courts apply the Young decision, which, like McDonnell Douglas, was intended to make it easier for employees to show they were discriminated against.

 

Kate

What would be a better test to use?

 

Professor Schoenbaum

A simplified test would be better.  Employees trying to prove discrimination should be able to put forward all the evidence they have, rather than parsing it out based on this test or that test.  Cases would not be analyzed under different tests, but courts could use one analysis to determine whether there was discrimination.

 

Kate

I think that a simplified approach sounds appealing in a lot of ways, but I am concerned about splitting the tests for disparate impact and disparate treatment, when the law specifically provides for employer liability in both circumstances – one where there is discriminatory intent and one where there is not but where an employer policy nevertheless has a disparate impact on a certain group of people.  Would conflating the tests allow employers to escape liability for policies that have a disparate impact on pregnant women, but where there is no intent?

 

Professor Schoenbaum

We do not want to lose claims for disparate impact, but employees’ pregnancy discrimination claims analyzed under disparate impact generally have been unsuccessful.  I think that having just one test under which courts analyze all the evidence together, including – any comments indicating discrimination, evidence of who the policy applies to and who it does not, the statistical evidence, and the employer justification – would be beneficial for plaintiffs.

 

Kate

In our panel discussion earlier this month on the Young v UPS case, we talked about how discrimination on the basis of pregnancy is different from other types of discrimination because in order to not discriminate based on race, for example, employers need to treat employees the same, but in order to not discriminate based on pregnancy, employers need to treat pregnant women different.  Do you think this is true?

 

Professor Schoenbaum

I think this question really gets to our core notions of the meaning of equality and discrimination.  The assumption underlying the traditional view of anti-discrimination law is that everyone has the same baseline starting point.  As a result, under this view, equality is achieved if we treat everyone equally.

 

Kate

Under this view, non-discrimination laws, which require the same treatment, are different from accommodation laws, which require different treatment.

 

Professor Schoenbaum

A lot of scholars have challenged this traditional view by noting that, in some instances, employers do have to “accommodate” certain people in order to treat them equally.  For example, when women first entered the workplace, employers had to make sure women had bathrooms.  Today we would think of having bathrooms for women as simply a matter of treating them equally, but at the time, it would have seemed as though it was an accommodation to women.  Employers had to take affirmative steps and expend resources to treat women equally.

 

As another example, the pizza chain Dominos had a “no-beard rule” for the employees who delivered pizza.  African-American men challenged this policy as having a disparate impact on them, in light of a physical condition disproportionately affecting African-American men that makes it unhealthy for them to shave.  These men challenged this policy as discriminatory and won.  Dominos had to allow a certain subgroup of employees to be exempt from the policy.  The case was brought under traditional non-discrimination law, but the result was that the employer had to treat African American men differently.

 

Kate

Those are great examples, and they really illustrate that in some cases treating people fairly under anti-discrimination laws requires more than simply treating people equally.  Or, put another way, treating people equally doesn’t necessarily mean treating people the same.

 

I can see how this may be confusing, even to well-intentioned employers, and I would encourage pregnant women and their employers to talk openly about how these issues are best addressed.

Kate Mueting

Kate Mueting

Kate Mueting is a Partner in the Washington, DC office of Sanford Heisler Sharp. Ms. Mueting is responsible for managing much of the KPMG gender discrimination litigation and also represents employees in other individual and class discrimination and overtime cases. Learn More

Share this Post

Categories

Tags

Archives

Back to Top