In 2015, the Supreme Court altered the course of pregnancy discrimination law with a ruling in which it clarified the circumstances under which the denial of a necessary accommodation to a pregnant employee would violate federal discrimination law. Since the ruling in Young v. United Parcel Service, federal courts around the country have been grappling with the proper treatment of accommodation claims. The results have been mixed, as some courts have taken to heart course correction mandated by the Supreme Court, while others have tried to return to business as usual—which is not favorable or fair to pregnant workers. In a recent ruling, however, a federal district court in Louisiana got it exactly right when it permitted a female police officer who complained of pregnancy discrimination to go to trial on her claims. In this column, I’ll explain the ruling in Townsend v. Town of Brusly and why that court correctly implemented the new doctrinal approach to accommodation claims.
Hard Labor for Kasey Townsend
Kasey Townsend began working as a “patrolman” (okay, so the court didn’t get everything right) with the Brusly Police Department on November 13, 2013. On March 25, 2015, she informed the police chief, Jonathan Lefeaux, and assistant chief, Tom Southon, that she was pregnant. She informed them that during a previous pregnancy while working for a different police department, she was able to obtain a light-duty position during her pregnancy. Lefeaux requested confirmation from her physician of her pregnancy and the duties she could still perform while pregnant. She remembered from her last pregnancy that she was not able to carry a firearm, but had not yet seen a physician for this pregnancy. The following week, Townsend’s doctor submitted a request for her to work a light-duty position for the remainder of her pregnancy. Southon responded by telling her to take the next two days off without pay. Perhaps it was not obvious yet, but this reaction to a request for light-duty work did not bode well for accommodating Townsend’s pregnancy.
Townsend then received a letter from Chief Lefeaux stating that she was scheduled to work the night shift on April 6 and that she would either need to be removed from light duty or complete a request for leave by that date. Townsend requested a variety of documents related to her employment, her benefits, her leave history, and the city council process that would be used to make decisions about her employment. She received some of the information, as well as a letter from Lefeaux stating that he would not even consider possible accommodations for her pregnancy because she supposedly refused to sign a release allowing him to contact her doctor directly. Through her lawyer, Townsend repeated that she had not yet seen the doctor and would not do so before they were asking her to take unpaid leave.
On May 5, 2015, there was a meeting attended by Southon, the former mayor, Joey Normand, and Townsend’s then-lawyer, Adrienne Rachel. Rachel requested various accommodations for Townsend, all of which were refused by those representing her employer. Rachel said they refused to even discuss any available position in city government that might be appropriate for Townsend during her pregnancy. They also, in her view, seemed uninterested in having a discussion with Townsend’s doctor about reasonable accommodations. Quite the contrary, Rachel attested; the former mayor said if Townsend wanted to keep her job, she should not stay pregnant. That’s where the meeting ended.
Townsend’s officer certification lapsed just a few weeks after that meeting, and eventually a man was hired to replace her. After Townsend gave birth, her lawyer contacted the department and advised that Townsend was ready to return to work at full capacity. At a meeting on January 11, 2016, about her future, the department’s lawyer told Townsend that if she dropped her EEOC complaint and lawsuit, they would consider reinstating her. When she refused, she was fired on the spot.
What, if any of this, constitutes pregnancy discrimination?
Pregnancy Discrimination Claims After Young v. UPS
Peggy Young sued UPS, alleging pregnancy discrimination. She had sought a routine workplace accommodation that was made available to many other workers with similar restrictions. Her only restriction was on lifting more than 20 pounds, something she was rarely if ever asked to do in her job as a driver for lighter packages that had arrived by air rather than truck. UPS had a formal policy in which it made light-duty assignments available to workers who were injured on the job, who had lost their commercial driver’s licenses for any reason, or who were disabled within the meaning of the Americans with Disabilities Act. Practically speaking, pregnant women were the main group who would never qualify for light-duty assignments under this policy.
Young sued under the Pregnancy Discrimination Act for the denial of the accommodation she needed to continue working throughout her pregnancy. This law is the heart of federal protection for pregnant workers, some of whom are separately protected by state laws that increasingly are more expansive than federal law. The 1978 law first prohibits employers from taking any action because of “pregnancy, childbirth, or related medical conditions.” This prevents employers from singling out pregnant workers for adverse treatment, whether the motivation is bias, hostility, paternalism, or stereotypes. The law also provides a right of comparative accommodation, through a second clause that directs employers to treat those temporarily disabled by pregnancy the same as it treats employees who are temporarily disabled from other causes.
The Second Clause proved more difficult for courts to apply—producing not only conflict among rulings but also a general landscape that failed to enforce the right promised by the statute. Many courts upheld policies that permitted only those injured on the job to receive light-duty assignments, even though that meant pregnant women were denied accommodations that were available to workers with comparable disabilities—a seeming violation of the clear text of the statute. Courts tended to collapse the two clauses of the PDA into a single right not to be punished for being a pregnant employee.
In the Young ruling (which is analyzed in greater detail here and here), the Court re-animated the Second Clause, by insisting that it be given some meaning separate from the First Clause. But it did in a somewhat confusing way that has generated a new round of court rulings that conflict with one another.
The Young Court adapted the McDonnell-Douglas framework, which provides a basis for smoking out discriminatory intent when the employer denies it, for pregnancy accommodation claims. Under Young, a plaintiff who has been denied an accommodation warranted by the physical effects of her pregnancy must first demonstrate that she was treated differently from someone similarly situated but outside the protected class. A plaintiff can establish a prima facie case of pregnancy discrimination simply by showing 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.’”
After her establishment of the prima facie case, the burden of production then shifts to the employer, who must articulate a legitimate, non-discriminatory reason for its differential treatment. But the Court ruled out some of the most likely reasons, specifying that the “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.”
Finally, the plaintiff then has the opportunity to reach a jury 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.”
Applying the Young Ruling in Townsend v. City of Brusly
It is too soon to assess the full impact of Young, but suffice it to say that at least some courts are slowing down, considering accommodation claims more thoroughly, and giving more plaintiffs the opportunity to take their claims to trial. This, alone, is progress, even if some courts are still misapplying the law.
The Townsend court recognized that it was not dealing with a typical case of denied accommodations in which the employer insists that the denial has nothing to with pregnancy per se. In Young, the employer claimed that she did not get a light-duty assignment because she wasn’t injured on the job, because she hadn’t lost her commercial driver’s license, and because she did not qualify for accommodations under the ADA. The refusal was not, UPS claimed, because she was pregnant; they insisted a man injured in a weekend softball game would have been denied an accommodation, too. Someone like Peggy Young would have benefited from the proof structure outlined by the Court in her own case.
In Townsend, unlike in Young, the employer denied the requested accommodations and made clear that it was because of her pregnancy. Recall that meeting with department officials and Townsend’s lawyer, at which the former mayor said she if she wanted to keep her job, she should not stay pregnant. The court treated this as a form of “direct evidence” that redirects her into an easier proof structure. When a plaintiff has evidence that directly ties the employment decision to a prohibited motive, the “burden of proof then shifts to the employer to establish by a preponderance of the evidence that the same decision would have been made regardless of the forbidden factor.”
The district court in this case was acting on the defendant’s motion for summary judgment, which means they were deciding whether to grant the employer a win without a trial based on the undisputed facts in the record or whether Townsend should get a trial on the merits. The court denied the motion and will permit Townsend to move to trial. In the court’s view, Townsend presented evidence showing that she was denied the accommodations she requested because she was pregnant. If true, that would violate the First Clause of the PDA, as well as the Second Clause, as interpreted in Young. The defendants offered no real response to her evidence—arguing instead that she hadn’t satisfied the prima facie case set forth in Young.
The court cited another post-Young ruling, Martin v. Winn-Dixie, Inc., in which a federal district court in Louisiana found the plaintiff had presented sufficient evidence of a tie between the decision and a prohibited motive—there, too, a pregnant worker was told she couldn’t very well continue to do her job and be pregnant. In yet another case, the court found direct evidence of discrimination when a pregnant plaintiff was denied an accommodation and told that it was her employer’s “custom” not to excuse pregnant employees from a particular work-related task.
The statements made to Townsend’s lawyer were neither “disputed nor controverted,” and therefore constitute the type of evidence that shows a direct link between a discriminatory motive and the denial of her requested accommodation. The court was right to be alarmed by the openness with which the department refused to make any effort to retain Townsend through her pregnancy. “The Court finds particularly troubling the alleged statement made to Plaintiff by former Mayor Normand that, if she wanted to keep her job, she should not stay pregnant. . . . The statement that no female officers would be allowed to perform jail bookings and the admission by Chief Lefeaux that Defendant’s representatives never even considered placing Plaintiff on light duty based on the limitations due to her pregnancy also constitute direct evidence of discrimination.”
Moreover, the court continued, even if the statements are not sufficient to shift the burden of proof to the defendants, Townsend should get to proceed to trial on the pretext theory articulated in Young. The defendant, according to the court, did not correctly argue the legal standard. Rather, the defendant made an argument that was specifically rejected by the Supreme Court in Young—and ignored the standard that replaced it. The defendant argued that she was no longer “qualified for the position” based on her inability to carry a firearm—but, as the court correctly recognized, that is no longer an element of the prima facie case after Young.
The defendant also argued that Townsend failed to satisfy the fourth prong of the prima face case—that “the employer did accommodate others similar in their ability or inability to work.” The plaintiff had produced evidence of a male police officer who was granted light-duty tasks after two eye surgeries that left him with temporary physical restrictions. The defendant argued that he could not be treated as “similar” because he and Townsend had different professional experience. Here, again, the court criticized the defendant for not appreciating how Young had clarified and interpreted the Second Clause of the PDA. As the court explained, “the issue under the PDA is not a comparator’s difference in professional experience, disciplinary record, or available leave time. The sole basis for comparison under Young is the similarity in the physical restrictions of the employee and the need for similar accommodations.” On that test, the court agreed that the plaintiff had produced sufficient evidence of comparators who had received accommodations she had been denied for this stage of the case.
The court assumed without deciding that the defendants had presented a legitimate, non-discriminatory reason for firing Townsend. But it didn’t matter. Townsend had presented sufficient evidence of pretext that it would be improper to grant summary judgment to the defendant at this stage. She gets her day in court—and if the evidence looks anything like it does at this stage, it won’t be pretty for the defendant.
This case shows Young’s potential. Many of the cases decided before Young should come out differently now. But that depends on courts doing what this court did—carefully applying the new standard to the facts before it. Townsend was treated terribly by her employer, but fairly by this court.