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Joanna Grossman & Gillian Thomas, Making Sure Pregnancy Works: Accommodation Claims After Young v. United Parcel Service, Inc., 14 Harv. L. & Pol’y Rev. 319 (2020).

Professors Grossman and Thomas have written a wonderful article that describes how courts have applied Young v. United Parcel Service, 575 U.S. 206 (2015), in which the Court considered whether pregnant employees are entitled to workplace accommodations that they need because of pregnancy. The Court’s decision did not resolve the issue; it merely provided trial and appellate courts a structure for thinking about the issue. Consequently, courts have used the Young decision in various, inconsistent ways.

Reading this article, Making Sure Pregnancy Works: Accommodation Claims After Young v. United Parcel Service, Inc., was fun because it is smart, straightforward scholarship that discusses a live controversy that lingers because the Supreme Court did not resolve the issue when it had the opportunity to do so. It reminds us that the Supreme Court often addresses only the case directly before it, leaving trial and appellate courts to consider broader issues in later cases. That is worth remembering in this era in which the Supreme Court’s job is thought by some to include fully resolving important legal issues for good.

The article describes the issue that triggered Young—discrimination in the accommodation of pregnant employees. The Pregnancy Discrimination Act (PDA) deems pregnancy discrimination unlawful sex discrimination under Title VII of the Civil Rights Act of 1964 and requires pregnant employees be treated “the same for all employment-related purposes . . . as other persons not so affected but similar in their ability or inability to work.” Prior to Young, many employers had policies that granted or denied accommodations based on how a worker became injured or why the worker needed to be accommodated, with no specific provision for pregnancy-based accommodation. Under such policies, pregnancy was essentially grouped with the reasons that did not trigger accommodation rather than with the reasons that did trigger accommodation. Consequently, the Court needed to decide whether the PDA requires pregnant employees be accommodated to the same degree, e.g., given light duty assignments, as other workers who were accommodated for non-pregnancy reasons.

Rather than decide whether the PDA requires accommodation, the Young Court created a structure for trial and appellate courts to use to decide whether an employer discriminated against pregnant employees. The Court modified the three-part McDonnell Douglas test, which has been used for decades in employment discrimination cases to uncover intentional discrimination, to apply in this situation. The modified test helps a factfinder decide whether an employer who declines to accommodate a pregnant worker has done so for discriminatory reasons or nondiscriminatory reasons. The inquiry focuses on the employer’s justification for denying a pregnant worker an accommodation that other workers have been granted.

The article briefly discusses the approaches courts have taken in applying Young. Some courts—consistent with Young’s thrust—have aimed primarily at the employer’s justification for the refusal to accommodate. Other courts have focused less on the employer’s reasoning and more broadly on whether the employer discriminated against the pregnant employee. Some have required the pregnant plaintiff identify a similarly situated non-pregnant employee who was accommodated to support a possible inference of discrimination and escape summary judgment. Those approaches can lead to different outcomes in different circuits, yet all arguably stem from the Court’s decision. This is the result of the Court’s decision to elide Young’s key question.

The article reminds us that a Supreme Court decision does not always resolve an issue. A decision may move the legal dispute from one gray area to different but equally gray area. The Young decision provided trial and appellate courts latitude to decide whether employers discriminated when refusing to accommodate pregnant employees. Unsurprisingly, those courts have utilized multiple approaches to resolve the issue.

Ideally, the law should be clearer after the Supreme Court issues an opinion. As this article makes plain, that does not invariably happen. Employment law practitioners, students, and academics should read this article not to revel in the Supreme Court’s failure to clarify the law, but to consider what the law is and to think about how a responsible attorney should counsel clients regarding an employer’s obligation to accommodate and an employee’s right to accommodation when the law remains uncertain. In addition, the authors invite readers to consider the steps that should be taken to clarify the law on accommodating pregnant workers. The Supreme Court may need to revisit and clarify its decision or legislation may be necessary to resolve the issue.

There is much more law and policy embedded in this clear and enjoyable article. Readers will find out just how much more when they peruse the article.

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Cite as: Henry L. Chambers, Jr., The Supreme Court’s Job Is Not to Provide Clarity, JOTWELL (May 17, 2021) (reviewing Joanna Grossman & Gillian Thomas, Making Sure Pregnancy Works: Accommodation Claims After Young v. United Parcel Service, Inc., 14 Harv. L. & Pol’y Rev. 319 (2020)),