Young v. United Parcel Service, Inc.

(Slip Opinion) OCTOBER TERM, 2014 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
YOUNG v. UNITED PARCEL SERVICE, INC.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE FOURTH CIRCUIT
No. 12–1226. Argued December 3, 2014—Decided March 25, 2015
The Pregnancy Discrimination Act added new language to the defini-
tions subsection of Title VII of the Civil Rights Act of 1964. The first
clause of the Pregnancy Discrimination Act specifies that Title VII’s
prohibition against sex discrimination applies to discrimination “be-
cause of or on the basis of pregnancy, childbirth, or related medical
conditions.” 42 U. S. C §2000e(k). The Act’s second clause says that
employers must treat “women affected by pregnancy . . . the same for
all employment-related purposes . . . as other persons not so affected
but similar in their ability or inability to work.” Ibid. This case asks
the Court to determine how the latter provision applies in the context
of an employer’s policy that accommodates many, but not all, workers
with nonpregnancy-related disabilities.
Petitioner Young was a part-time driver for respondent United
Parcel Service (UPS). When she became pregnant, her doctor advised
her that she should not lift more than 20 pounds. UPS, however, re-
quired drivers like Young to be able to lift up to 70 pounds. UPS told
Young that she could not work while under a lifting restriction.
Young subsequently filed this federal lawsuit, claiming that UPS act-
ed unlawfully in refusing to accommodate her pregnancy-related lift-
ing restriction. She brought only a disparate-treatment claim of dis-
crimination, which a plaintiff can prove either by direct evidence that
a workplace policy, practice, or decision relies expressly on a protect-
ed characteristic, or by using the burden-shifting framework set forth
in McDonnell Douglas Corp. v. Green, 411 U. S. 792. Under that
framework, the plaintiff has “the initial burden” of “establishing a
prima facie case” of discrimination. Id., at 802. If she carries her
burden, the employer must have an opportunity “to articulate some
legitimate, non-discriminatory reason[s] for” the difference in treat-
2 YOUNG v. UNITED PARCEL SERVICE, INC.
Syllabus
ment. Ibid. If the employer articulates such reasons, the plaintiff
then has “an opportunity to prove by a preponderance of the evidence
that the reasons . . . were a pretext for discrimination.” Texas Dept.
of Community Affairs v. Burdine, 450 U. S. 248, 253.
After discovery, UPS sought summary judgment. In reply, Young
presented several favorable facts that she believed she could prove.
In particular, she pointed to UPS policies that accommodated work-
ers who were injured on the job, had disabilities covered by the Amer-
icans with Disabilities Act of 1990 (ADA), or had lost Department of
Transportation (DOT) certifications. Pursuant to these policies,
Young contended, UPS had accommodated several individuals whose
disabilities created work restrictions similar to hers. She argued that
these policies showed that UPS discriminated against its pregnant
employees because it had a light-duty-for-injury policy for numerous
“other persons,” but not for pregnant workers. UPS responded that,
since Young did not fall within the on-the-job injury, ADA, or DOT
categories, it had not discriminated against Young on the basis of
pregnancy, but had treated her just as it treated all “other” relevant
“persons.”
The District Court granted UPS summary judgment, concluding,
inter alia, that Young could not make out a prima facie case of dis-
crimination under McDonnell Douglas. The court found that those
with whom Young had compared herself—those falling within the on-
the-job, DOT, or ADA categories—were too different to qualify as
“similarly situated comparator[s].” The Fourth Circuit affirmed.
Held:
1. An individual pregnant worker who seeks to show disparate
treatment through indirect evidence may do so through application of
the McDonnell Douglas framework. Pp. 10–23.
(a) The parties’ interpretations of the Pregnancy Discrimination
Act’s second clause are unpersuasive. Pp. 12–20.
(i) Young claims that as long as “an employer accommodates
only a subset of workers with disabling conditions,” “pregnant work-
ers who are similar in the ability to work [must] receive the same
treatment even if still other nonpregnant workers do not receive ac-
commodations.” Brief for Petitioner 28. Her reading proves too
much. The Court doubts that Congress intended to grant pregnant
workers an unconditional “most-favored-nation” status, such that
employers who provide one or two workers with an accommodation
must provide similar accommodations to all pregnant workers, irre-
spective of any other criteria. After all, the second clause of the Act,
when referring to nonpregnant persons with similar disabilities, uses
the open-ended term “other persons.” It does not say that the em-
ployer must treat pregnant employees the “same” as “any other per-
Cite as: 575 U. S. ____ (2015) 3
Syllabus
sons” who are similar in their ability or inability to work, nor does it
specify the particular “other persons” Congress had in mind as ap-
propriate comparators for pregnant workers. Moreover, disparate-
treatment law normally allows an employer to implement policies
that are not intended to harm members of a protected class, even if
their implementation sometimes harms those members, as long as
the employer has a legitimate, nondiscriminatory, nonpretextual rea-
son for doing so. See, e.g., Burdine, supra, at 252–258. There is no
reason to think Congress intended its language in the Pregnancy
Discrimination Act to deviate from that approach. Pp. 12–14.
(ii) The Solicitor General argues that the Court should give
special, if not controlling, weight to a 2014 Equal Employment Op-
portunity Commission guideline concerning the application of Title
VII and the ADA to pregnant employees. But that guideline lacks
the timing, “consistency,” and “thoroughness” of “consideration” nec-
essary to “give it power to persuade.” Skidmore v. Swift & Co., 323
U. S. 134, 140. The guideline was promulgated after certiorari was
granted here; it takes a position on which previous EEOC guidelines
were silent; it is inconsistent with positions long advocated by the
Government; and the EEOC does not explain the basis for its latest
guidance. Pp. 14–17.
(iii) UPS claims that the Act’s second clause simply defines sex
discrimination to include pregnancy discrimination. But that cannot
be right, as the first clause of the Act accomplishes that objective.
Reading the Act’s second clause as UPS proposes would thus render
the first clause superfluous. It would also fail to carry out a key con-
gressional objective in passing the Act. The Act was intended to
overturn the holding and the reasoning of General Elec. Co. v. Gil-
bert, 429 U. S. 125, which upheld against a Title VII challenge a
company plan that provided nonoccupational sickness and accident
benefits to all employees but did not provide disability-benefit pay-
ments for any absence due to pregnancy. Pp. 17–20.
(b) An individual pregnant worker who seeks to show disparate
treatment may make out a prima facie case under the McDonnell
Douglas framework by showing that she belongs to the protected
class, that she sought accommodation, that the employer did not ac-
commodate her, and that the employer did accommodate others “sim-
ilar in their ability or inability to work.” The employer may then
seek to justify its refusal to accommodate the plaintiff by relying on
“legitimate, nondiscriminatory” reasons for denying accommodation.
That 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 whom the employer accommodates. If the employer offers a
“legitimate, nondiscriminatory” reason, the plaintiff may show that it
4 YOUNG v. UNITED PARCEL SERVICE, INC.
Syllabus
is in fact pretextual. The plaintiff may reach a jury on this issue by
providing sufficient evidence that the employer’s policies impose a
significant burden on pregnant workers, and that the employer’s “le-
gitimate, nondiscriminatory” reasons are not sufficiently strong to
justify the burden, but rather—when considered along with the bur-
den imposed—give rise to an inference of intentional discrimination.
The plaintiff can create a genuine issue of material fact as to whether
a significant burden exists by providing evidence that the employer
accommodates a large percentage of nonpregnant workers while fail-
ing to accommodate a large percentage of pregnant workers. This
approach is consistent with the longstanding rule that a plaintiff can
use circumstantial proof to rebut an employer’s apparently legiti-
mate, nondiscriminatory reasons, see Burdine, supra, at 255, n. 10,
and with Congress’ intent to overrule Gilbert. Pp. 20–23.
2. Under this interpretation of the Act, the Fourth Circuit’s judg-
ment must be vacated. Summary judgment is appropriate when
there is “no genuine dispute as to any material fact.” Fed. Rule Civ.
Proc. 56(a). The record here shows that Young created a genuine
dispute as to whether UPS provided more favorable treatment to at
least some employees whose situation cannot reasonably be distin-
guished from hers. It is left to the Fourth Circuit to determine on
remand whether Young also created a genuine issue of material fact
as to whether UPS’ reasons for having treated Young less favorably
than these other nonpregnant employees were pretextual. Pp. 23–24.
707 F. 3d 437, vacated and remanded.
BREYER, J., delivered the opinion of the Court, in which ROBERTS,
C. J., and GINSBURG, SOTOMAYOR, and KAGAN, JJ., joined. ALITO, J.,
filed an opinion concurring in the judgment. SCALIA, J., filed a dissent-
ing opinion, in which KENNEDY and THOMAS, JJ., joined. KENNEDY, J.,
filed a dissenting opinion.
Cite as: 575 U. S. ____ (2015) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash-
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
No. 12–1226
_________________
PEGGY YOUNG, PETITIONER v. UNITED PARCEL
SERVICE, INC.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FOURTH CIRCUIT
[March 25, 2015]
JUSTICE BREYER delivered the opinion of the Court.
The Pregnancy Discrimination Act makes clear that
Title VII’s prohibition against sex discrimination applies
to discrimination based on pregnancy. It also says that
employers must treat “women affected by pregnancy . . .
the same for all employment-related purposes . . . as other
persons not so affected but similar in their ability or in-
ability to work.” 42 U. S. C. §2000e(k). We must decide
how this latter provision applies in the context of an em-
ployer’s policy that accommodates many, but not all,
workers with nonpregnancy-related disabilities.
In our view, the Act requires courts to consider the
extent to which an employer’s policy treats pregnant
workers less favorably than it treats nonpregnant workers
similar in their ability or inability to work. And here—as
in all cases in which an individual plaintiff seeks to show
disparate treatment through indirect evidence—it re-
quires courts to consider any legitimate, nondiscrimina-
tory, nonpretextual justification for these differences in
treatment. See McDonnell Douglas Corp. v. Green, 411
U. S. 792, 802 (1973). Ultimately the court must deter-
2 YOUNG v. UNITED PARCEL SERVICE, INC.
Opinion of the Court
mine whether the nature of the employer’s policy and the
way in which it burdens pregnant women shows that the
employer has engaged in intentional discrimination. The
Court of Appeals here affirmed a grant of summary judg-
ment in favor of the employer. Given our view of the law,
we must vacate that court’s judgment.
I
A
We begin with a summary of the facts. The petitioner,
Peggy Young, worked as a part-time driver for the re-
spondent, United Parcel Service (UPS). Her responsibili-
ties included pickup and delivery of packages that had
arrived by air carrier the previous night. In 2006, after
suffering several miscarriages, she became pregnant. Her
doctor told her that she should not lift more than 20
pounds during the first 20 weeks of her pregnancy or more
than 10 pounds thereafter. App. 580. UPS required driv-
ers like Young to be able to lift parcels weighing up to 70
pounds (and up to 150 pounds with assistance). Id., at
578. UPS told Young she could not work while under a
lifting restriction. Young consequently stayed home with-
out pay during most of the time she was pregnant and
eventually lost her employee medical coverage.
Young subsequently brought this federal lawsuit. We
focus here on her claim that UPS acted unlawfully in
refusing to accommodate her pregnancy-related lifting
restriction. Young said that her co-workers were willing
to help her with heavy packages. She also said that UPS
accommodated other drivers who were “similar in their . . .
inability to work.” She accordingly concluded that UPS
must accommodate her as well. See Brief for Petitioner
30–31.
UPS responded that the “other persons” whom it had
accommodated were (1) drivers who had become disabled
on the job, (2) those who had lost their Department of
Cite as: 575 U. S. ____ (2015) 3
Opinion of the Court
Transportation (DOT) certifications, and (3) those who
suffered from a disability covered by the Americans with
Disabilities Act of 1990 (ADA), 104 Stat. 327, 42 U. S. C.
§12101 et seq. UPS said that, since Young did not fall
within any of those categories, it had not discriminated
against Young on the basis of pregnancy but had treated
her just as it treated all “other” relevant “persons.” See
Brief for Respondent 34.
B
Title VII of the Civil Rights Act of 1964 forbids a covered
employer to “discriminate against any individual with
respect to . . . terms, conditions, or privileges of employ-
ment, because of such individual’s . . . sex.” 78 Stat. 253,
42 U. S. C. §2000e–2(a)(1). In 1978, Congress enacted the
Pregnancy Discrimination Act, 92 Stat. 2076, which added
new language to Title VII’s definitions subsection. The
first clause of the 1978 Act specifies that Title VII’s
“ter[m] ‘because of sex’ . . . include[s] . . . because of or on
the basis of pregnancy, childbirth, or related medical
conditions.” §2000e(k). The second clause says that
“women affected by pregnancy, childbirth, or related
medical conditions shall be treated the same for all
employment-related purposes . . . as other persons not
so affected but similar in their ability or inability to
work . . . .” Ibid.
This case requires us to consider the application of the
second clause to a “disparate-treatment” claim—a claim
that an employer intentionally treated a complainant less
favorably than employees with the “complainant’s qualifi-
cations” but outside the complainant’s protected class.
McDonnell Douglas, supra, at 802. We have said that
“[l]iability in a disparate-treatment case depends on
whether the protected trait actually motivated the em-
ployer’s decision.” Raytheon Co. v. Hernandez, 540 U. S.
4 YOUNG v. UNITED PARCEL SERVICE, INC.
Opinion of the Court
44, 52 (2003) (ellipsis and internal quotation marks omit-
ted). We have also made clear that a plaintiff can prove
disparate treatment either (1) by direct evidence that a
workplace policy, practice, or decision relies expressly on a
protected characteristic, or (2) by using the burden-
shifting framework set forth in McDonnell Douglas. See
Trans World Airlines, Inc. v. Thurston, 469 U. S. 111, 121
(1985).
In McDonnell Douglas, we considered a claim of discrim-
inatory hiring. We said that, to prove disparate treat-
ment, an individual plaintiff must “carry the initial bur-
den” of “establishing a prima facie case” of discrimination
by showing
“(i) that he belongs to a . . . minority; (ii) that he ap-
plied and was qualified for a job for which the employer
was seeking applicants; (iii) that, despite his quali-
fications, he was rejected; and (iv) that, after his
rejection, the position remained open and the employer
continued to seek applicants from persons of com-
plainant’s qualifications.” 411 U. S., at 802.
If a plaintiff makes this showing, then the employer must
have an opportunity “to articulate some legitimate, non-
discriminatory reason for” treating employees outside the
protected class better than employees within the protected
class. Ibid. If the employer articulates such a reason, the
plaintiff then has “an opportunity to prove by a prepon-
derance of the evidence that the legitimate reasons offered
by the defendant [i.e., the employer] were not its true
reasons, but were a pretext for discrimination.” Texas
Dept. of Community Affairs v. Burdine, 450 U. S. 248, 253
(1981).
We note that employment discrimination law also cre-
ates what is called a “disparate-impact” claim. In evaluat-
ing a disparate-impact claim, courts focus on the effects of
an employment practice, determining whether they are
Cite as: 575 U. S. ____ (2015) 5
Opinion of the Court
unlawful irrespective of motivation or intent. See Raytheon,
supra, at 52–53; see also Ricci v. DeStefano, 557 U. S.
557, 578 (2009). But Young has not alleged a disparate-
impact claim.
Nor has she asserted what we have called a “pattern-or-
practice” claim. See Teamsters v. United States, 431 U. S.
324, 359 (1977) (explaining that Title VII plaintiffs who
allege a “pattern or practice” of discrimination may estab-
lish a prima facie case by “another means”); see also id., at
357 (rejecting contention that the “burden of proof in a
pattern-or-practice case must be equivalent to that out-
lined in McDonnell Douglas”).
C
In July 2007, Young filed a pregnancy discrimination
charge with the Equal Employment Opportunity Commis-
sion (EEOC). In September 2008, the EEOC provided her
with a right-to-sue letter. See 29 CFR §1601.28 (2014).
Young then filed this complaint in Federal District Court.
She argued, among other things, that she could show by
direct evidence that UPS had intended to discriminate
against her because of her pregnancy and that, in any
event, she could establish a prima facie case of disparate
treatment under the McDonnell Douglas framework. See
App. 60–62.
After discovery, UPS filed a motion for summary judg-
ment. See Fed. Rule Civ. Proc. 56(a). In reply, Young
pointed to favorable facts that she believed were either
undisputed or that, while disputed, she could prove. They
include the following:
1. Young worked as a UPS driver, picking up and de-
livering packages carried by air. Plaintiff ’s Memo-
randum in Opposition to Defendant’s Motion for
Summary Judgment in No. 08–cv–02586 (D Md.),
pp. 3–4 (hereinafter Memorandum).
2. Young was pregnant in the fall of 2006. Id., at 15–16.
6 YOUNG v. UNITED PARCEL SERVICE, INC.
Opinion of the Court
3. Young’s doctor recommended that she “not be re-
quired to lift greater than 20 pounds for the first 20
weeks of pregnancy and no greater than 10 pounds
thereafter.” App. 580; see also Memorandum 17.
4. UPS required drivers such as Young to be able to
“[l]ift, lower, push, pull, leverage and manipulate
. . . packages weighing up to 70 pounds” and to
“[a]ssist in moving packages weighing up to 150
pounds.” App. 578; see also Memorandum 5.
5. UPS’ occupational health manager, the official “re-
sponsible for most issues relating to employee
health and ability to work” at Young’s UPS facility,
App. 568–569, told Young that she could not return
to work during her pregnancy because she could
not satisfy UPS’ lifting requirements, see Memo-
randum 17−18; 2011 WL 665321, *5 (D Md., Feb.
14, 2011).
6. The manager also determined that Young did not
qualify for a temporary alternative work assign-
ment. Ibid.; see also Memorandum 19–20.
7. UPS, in a collective-bargaining agreement, had
promised to provide temporary alternative work
assignments to employees “unable to perform their
normal work assignments due to an on-the-job in-
jury.” App. 547 (emphasis added); see also Memo-
randum 8, 45–46.
8. The collective-bargaining agreement also provided
that UPS would “make a good faith effort to comply
. . . with requests for a reasonable accommodation
because of a permanent disability” under the ADA.
App. 548; see also Memorandum 7.
9. The agreement further stated that UPS would give
“inside” jobs to drivers who had lost their DOT cer-
tifications because of a failed medical exam, a lost
driver’s license, or involvement in a motor vehicle
accident. See App. 563–565; Memorandum 8.
Cite as: 575 U. S. ____ (2015) 7
Opinion of the Court
10. When Young later asked UPS’ Capital Division
Manager to accommodate her disability, he replied
that, while she was pregnant, she was “too much of
a liability” and could “not come back” until she
“ ‘was no longer pregnant.’ ” Id., at 20.
11. Young remained on a leave of absence (without
pay) for much of her pregnancy. Id., at 49.
12. Young returned to work as a driver in June 2007,
about two months after her baby was born. Id., at
21, 61.
As direct evidence of intentional discrimination, Young
relied, in significant part, on the statement of the Capital
Division Manager (10 above). As evidence that she had
made out a prima facie case under McDonnell Douglas,
Young relied, in significant part, on evidence showing that
UPS would accommodate workers injured on the job (7),
those suffering from ADA disabilities (8), and those who
had lost their DOT certifications (9). That evidence, she
said, showed that UPS had a light-duty-for-injury policy
with respect to numerous “other persons,” but not with
respect to pregnant workers. See Memorandum 29.
Young introduced further evidence indicating that UPS
had accommodated several individuals when they suffered
disabilities that created work restrictions similar to hers.
UPS contests the correctness of some of these facts and
the relevance of others. See Brief for Respondent 5, 6, 57.
But because we are at the summary judgment stage, and
because there is a genuine dispute as to these facts, we
view this evidence in the light most favorable to Young,
the nonmoving party, see Scott v. Harris, 550 U. S. 372,
380 (2007):
13. Several employees received accommodations while
suffering various similar or more serious disabili-
ties incurred on the job. See App. 400–401 (10–
pound lifting limitation); id., at 635 (foot injury);
8 YOUNG v. UNITED PARCEL SERVICE, INC.
Opinion of the Court
id., at 637 (arm injury).
14. Several employees received accommodations follow-
ing injury, where the record is unclear as to whether
the injury was incurred on or off the job. See id.,
at 381 (recurring knee injury); id., at 655 (ankle in-
jury); id., at 655 (knee injury); id., at 394−398
(stroke); id., at 425, 636–637 (leg injury).
15. Several employees received “inside” jobs after los-
ing their DOT certifications. See id., at 372 (DOT
certification suspended after conviction for driv-
ing under the influence); id., at 636, 647 (failed
DOT test due to high blood pressure); id., at 640–
641 (DOT certification lost due to sleep apnea
diagnosis).
16. Some employees were accommodated despite the
fact that their disabilities had been incurred off the
job. See id., at 446 (ankle injury); id., at 433, 635–
636 (cancer).
17. According to a deposition of a UPS shop steward
who had worked for UPS for roughly a decade, id.,
at 461, 463, “the only light duty requested [due to
physical] restrictions that became an issue” at UPS
“were with women who were pregnant,” id., at 504.
The District Court granted UPS’ motion for summary
judgment. It concluded that Young could not show inten-
tional discrimination through direct evidence. 2011 WL
665321, *10−*12. Nor could she make out a prima facie
case of discrimination under McDonnell Douglas. The
court wrote that those with whom Young compared her-
self—those falling within the on-the-job, DOT, or ADA
categories—were too different to qualify as “similarly
situated comparator[s].” 2011 WL 665321, *14. The court
added that, in any event, UPS had offered a legitimate,
nondiscriminatory reason for failing to accommodate
pregnant women, and Young had not created a genuine
Cite as: 575 U. S. ____ (2015) 9
Opinion of the Court
issue of material fact as to whether that reason was pre-
textual. Id., at *15.
On appeal, the Fourth Circuit affirmed. It wrote that
“UPS has crafted a pregnancy-blind policy” that is “at
least facially a ‘neutral and legitimate business practice,’
and not evidence of UPS’s discriminatory animus toward
pregnant workers.” 707 F. 3d 437, 446 (2013). It also
agreed with the District Court that Young could not show
that “similarly-situated employees outside the protected
class received more favorable treatment than Young.” Id.,
at 450. Specifically, it believed that Young was different
from those workers who were “disabled under the ADA”
(which then protected only those with permanent disabili-
ties) because Young was “not disabled”; her lifting limita-
tion was only “temporary and not a significant restriction
on her ability to perform major life activities.” Ibid.Young was also different from those workers who had lost
their DOT certifications because “no legal obstacle stands
between her and her work” and because many with lost
DOT certifications retained physical (i.e., lifting) capacity
that Young lacked. Ibid. And Young was different from
those “injured on the job because, quite simply, her inabil-
ity to work [did] not arise from an on-the-job injury.” Id.,at 450–451. Rather, Young more closely resembled “an
employee who injured his back while picking up his infant
child or . . . an employee whose lifting limitation arose
from her off-the-job work as a volunteer firefighter,” nei-
ther of whom would have been eligible for accommodation
under UPS’ policies. Id., at 448.
Young filed a petition for certiorari essentially asking us
to review the Fourth Circuit’s interpretation of the Preg-
nancy Discrimination Act. In light of lower-court uncer-
tainty about the interpretation of the Act, we granted the
petition. Compare Ensley-Gaines v. Runyon, 100 F. 3d
1220, 1226 (CA6 1996), with Urbano v. Continental Air-
lines, Inc., 138 F. 3d 204, 206–208 (CA5 1998); Reeves v.
10 YOUNG v. UNITED PARCEL SERVICE, INC.
Opinion of the Court
Swift Transp. Co., 446 F. 3d 637, 640−643 (CA6 2006);
Serednyj v. Beverly Healthcare, LLC, 656 F. 3d 540, 547–
552 (CA7 2011); Spivey v. Beverly Enterprises, Inc., 196
F. 3d 1309, 1312–1314 (CA11 1999).
D
We note that statutory changes made after the time of
Young’s pregnancy may limit the future significance of our
interpretation of the Act. In 2008, Congress expanded the
definition of “disability” under the ADA to make clear that
“physical or mental impairment[s] that substantially
limi[t]” an individual’s ability to lift, stand, or bend are
ADA-covered disabilities. ADA Amendments Act of 2008,
122 Stat. 3555, codified at 42 U. S. C. §§12102(1)–(2). As
interpreted by the EEOC, the new statutory definition
requires employers to accommodate employees whose
temporary lifting restrictions originate off the job. See 29
CFR pt. 1630, App., §1630.2(j)(1)(ix). We express no view
on these statutory and regulatory changes.
II
The parties disagree about the interpretation of the
Pregnancy Discrimination Act’s second clause. As we have
said, see Part I–B, supra, the Act’s first clause specifies
that discrimination “ ‘because of sex’ ” includes discrimina-
tion “because of . . . pregnancy.” But the meaning of the
second clause is less clear; it adds: “[W]omen affected by
pregnancy, childbirth, or related medical conditions shall
be treated the same for all employment-related purposes
. . . as other persons not so affected but similar in their
ability or inability to work.” 42 U. S. C. §2000e(k) (empha-
sis added). Does this clause mean that courts must com-
pare workers only in respect to the work limitations that
they suffer? Does it mean that courts must ignore all
other similarities or differences between pregnant and
nonpregnant workers? Or does it mean that courts, when
Cite as: 575 U. S. ____ (2015) 11
Opinion of the Court
deciding who the relevant “other persons” are, may con-
sider other similarities and differences as well? If so,
which ones?
The differences between these possible interpretations
come to the fore when a court, as here, must consider a
workplace policy that distinguishes between pregnant and
nonpregnant workers in light of characteristics not related
to pregnancy. Young poses the problem directly in her
reply brief when she says that the Act requires giving “the
same accommodations to an employee with a pregnancy-
related work limitation as it would give that employee if
her work limitation stemmed from a different cause but
had a similar effect on her inability to work.” Reply Brief
15. Suppose the employer would not give “that [ pregnant]
employee” the “same accommodations” as another employee,
but the employer’s reason for the difference in treatment
is that the pregnant worker falls within a facially neutral
category (for example, individuals with off-the-job in-
juries). What is a court then to do?
The parties propose very different answers to this ques-
tion. Young and the United States believe that the second
clause of the Pregnancy Discrimination Act “requires an
employer to provide the same accommodations to work-
place disabilities caused by pregnancy that it provides to
workplace disabilities that have other causes but have a
similar effect on the ability to work.” Brief for Petitioner
23. In other words, Young contends that the second clause
means that whenever “an employer accommodates only a
subset of workers with disabling conditions,” a court
should find a Title VII violation if “pregnant workers who
are similar in the ability to work” do not “receive the same
[accommodation] even if still other non-pregnant workers
do not receive accommodations.” Id., at 28.
UPS takes an almost polar opposite view. It contends
that the second clause does no more than define sex dis-
crimination to include pregnancy discrimination. See
12 YOUNG v. UNITED PARCEL SERVICE, INC.
Opinion of the Court
Brief for Respondent 25. Under this view, courts would
compare the accommodations an employer provides to
pregnant women with the accommodations it provides to
others within a facially neutral category (such as those
with off-the-job injuries) to determine whether the em-
ployer has violated Title VII. Cf. post, at 4 (SCALIA, J.,
dissenting) (hereinafter the dissent) (the clause “does not
prohibit denying pregnant women accommodations . . . on
the basis of an evenhanded policy”).
A
We cannot accept either of these interpretations. Young
asks us to interpret the second clause broadly and, in her
view, literally. As just noted, she argues that, as long as
“an employer accommodates only a subset of workers with
disabling conditions,” “pregnant workers who are similar
in the ability to work [must] receive the same treatment
even if still other nonpregnant workers do not receive
accommodations.” Brief for Petitioner 28. She adds that,
because the record here contains “evidence that pregnant
and nonpregnant workers were not treated the same,” that
is the end of the matter, she must win; there is no need to
refer to McDonnell Douglas. Brief for Petitioner 47.
The problem with Young’s approach is that it proves too
much. It seems to say that the statute grants pregnant
workers a “most-favored-nation” status. As long as an
employer provides one or two workers with an accommo-
dation—say, those with particularly hazardous jobs, or
those whose workplace presence is particularly needed, or
those who have worked at the company for many years, or
those who are over the age of 55—then it must provide
similar accommodations to all pregnant workers (with
comparable physical limitations), irrespective of the na-
ture of their jobs, the employer’s need to keep them work-
ing, their ages, or any other criteria.
Lower courts have concluded that this could not have
Cite as: 575 U. S. ____ (2015) 13
Opinion of the Court
been Congress’ intent in passing the Pregnancy Discrimi-
nation Act. See, e.g., Urbano, 138 F. 3d, at 206–208;
Reeves, 466 F. 3d, at 641; Serednyj, 656 F. 3d, at 548–549;
Spivey, 196 F. 3d, at 1312–1313. And Young partially
agrees, for she writes that “the statute does not require
employers to give” to “pregnant workers all of the benefits
and privileges it extends to other” similarly disabled “em-
ployees when those benefits and privileges are . . . based
on the employee’s tenure or position within the company.”
Reply Brief 15–16; see also Tr. of Oral Arg. 22
(“[S]eniority, full-time work, different job classifications,
all of those things would be permissible distinctions for
an employer to make to differentiate among who gets
benefits”).
Young’s last-mentioned concession works well with
respect to seniority, for Title VII itself contains a seniority
defense, see 42 U. S. C. §2000e–2(h). Hence, seniority is
not part of the problem. But otherwise the most-favored-
nation problem remains, and Young’s concession does not
solve it. How, for example, should a court treat special
benefits attached to injuries arising out of, say, extra-
hazardous duty? If Congress intended to allow differences
in treatment arising out of special duties, special service,
or special needs, why would it not also have wanted
courts to take account of differences arising out of special
“causes”—for example, benefits for those who drive (and
are injured) in extrahazardous conditions?
We agree with UPS to this extent: We doubt that Con-
gress intended to grant pregnant workers an unconditional
most-favored-nation status. The language of the statute
does not require that unqualified reading. The second
clause, when referring to nonpregnant persons with simi-
lar disabilities, uses the open-ended term “other persons.”
It does not say that the employer must treat pregnant
employees the “same” as “any other persons” (who are
similar in their ability or inability to work), nor does it
14 YOUNG v. UNITED PARCEL SERVICE, INC.
Opinion of the Court
otherwise specify which other persons Congress had in
mind.
Moreover, disparate-treatment law normally permits an
employer to implement policies that are not intended to
harm members of a protected class, even if their imple-
mentation sometimes harms those members, as long as
the employer has a legitimate, nondiscriminatory, nonpre-
textual reason for doing so. See, e.g., Raytheon, 540 U. S.,
at 51–55; Burdine, 450 U. S., at 252–258; McDonnell
Douglas, 411 U. S., at 802. There is no reason to believe
Congress intended its language in the Pregnancy Discrim-
ination Act to embody a significant deviation from this
approach. Indeed, the relevant House Report specifies
that the Act “reflect[s] no new legislative mandate.” H. R.
Rep. No. 95–948, pp. 3–4 (1978) (hereinafter H. R. Rep.).
And the Senate Report states that the Act was designed to
“reestablis[h] the law as it was understood prior to” this
Court’s decision in General Electric Co. v. Gilbert, 429
U. S. 125 (1976). S. Rep. No. 95–331, p. 8 (1978) (herein-
after S. Rep.). See Gilbert, supra, at 147 (Brennan, J.,
dissenting) (lower courts had held that a disability plan
that compensates employees for temporary disabilities but
not pregnancy violates Title VII); see also AT&T Corp. v.
Hulteen, 556 U. S. 701, 717, n. 2 (2009) (GINSBURG, J.,
dissenting).
B
Before Congress passed the Pregnancy Discrimination
Act, the EEOC issued guidance stating that “[d]isabilities
caused or contributed to by pregnancy . . . are, for all job-
related purposes, temporary disabilities” and that “the
availability of . . . benefits and privileges . . . shall be
applied to disability due to pregnancy or childbirth on the
same terms and conditions as they are applied to other
temporary disabilities.” 29 CFR §1604.10(b) (1975).
Indeed, as early as 1972, EEOC guidelines provided:
Cite as: 575 U. S. ____ (2015) 15
Opinion of the Court
“Disabilities caused or contributed to by pregnancy . . .
are, for all job-related purposes, temporary disabilities and
should be treated as such under any health or temporary
disability insurance or sick leave plan available in connec-
tion with employment.” 37 Fed. Reg. 6837 (1972) (codified
in 29 CFR §1604.10(b) (1973)).
Soon after the Act was passed, the EEOC issued guid-
ance consistent with its pre-Act statements. The EEOC
explained: “Disabilities caused or contributed to by preg-
nancy . . . for all job-related purposes, shall be treated the
same as disabilities caused or contributed to by other
medical conditions.” See §1604.10(b) (1979). Moreover,
the EEOC stated that “[i]f other employees temporarily
unable to lift are relieved of these functions, pregnant
employees also unable to lift must be temporarily relieved
of the function.” 29 CFR pt. 1604, App., p. 918.
This post-Act guidance, however, does not resolve the
ambiguity of the term “other persons” in the Act’s second
clause. Rather, it simply tells employers to treat pregnancy-
related disabilities like nonpregnancy-related disabilities,
without clarifying how that instruction should be imple-
mented when an employer does not treat all nonpregnancy-
related disabilities alike.
More recently—in July 2014—the EEOC promulgated
an additional guideline apparently designed to address
this ambiguity. That guideline says that “[a]n employer
may not refuse to treat a pregnant worker the same as
other employees who are similar in their ability or inabil-
ity to work by relying on a policy that makes distinctions
based on the source of an employee’s limitations (e.g., a
policy of providing light duty only to workers injured on
the job).” 2 EEOC Compliance Manual §626–I(A)(5), p.
626:0009 (July 2014). The EEOC also provided an exam-
ple of disparate treatment that would violate the Act:
“An employer has a policy or practice of providing
16 YOUNG v. UNITED PARCEL SERVICE, INC.
Opinion of the Court
light duty, subject to availability, for any employee
who cannot perform one or more job duties for up to
90 days due to injury, illness, or a condition that
would be a disability under the ADA. An employee
requests a light duty assignment for a 20–pound lift-
ing restriction related to her pregnancy. The em-
ployer denies the light duty request.” Id., at 626:0013,
Example 10.
The EEOC further added that “an employer may not deny
light duty to a pregnant employee based on a policy that
limits light duty to employees with on-the-job injuries.”
Id., at 626:0028.
The Solicitor General argues that we should give spe-
cial, if not controlling, weight to this guideline. He points
out that we have long held that “the rulings, interpreta-
tions and opinions” of an agency charged with the mission
of enforcing a particular statute, “while not controlling
upon the courts by reason of their authority, do constitute
a body of experience and informed judgment to which
courts and litigants may properly resort for guidance.”
Skidmore v. Swift & Co., 323 U. S. 134, 140 (1944). See
Brief for United States as Amicus Curiae 26.
But we have also held that the “weight of such a judg-
ment in a particular case will depend upon the thorough-
ness evident in its consideration, the validity of its reason-
ing, its consistency with earlier and later pronouncements,
and all those factors that give it power to persuade, if
lacking power to control.” Skidmore, supra, at 140. These
qualifications are relevant here and severely limit the
EEOC’s July 2014 guidance’s special power to persuade.
We come to this conclusion not because of any agency
lack of “experience” or “informed judgment.” Rather, the
difficulties are those of timing, “consistency,” and “thor-
oughness” of “consideration.” The EEOC promulgated its
2014 guidelines only recently, after this Court had granted
Cite as: 575 U. S. ____ (2015) 17
Opinion of the Court
certiorari in this case. In these circumstances, it is fair to
say that the EEOC’s current guidelines take a position
about which the EEOC’s previous guidelines were silent.
And that position is inconsistent with positions for
which the Government has long advocated. See Brief for
Defendant-Appellee in Ensley-Gaines v. Runyon, No. 95–
1038 (CA6 1996), pp. 26–27 (explaining that a reading of the
Act like Young’s was “simply incorrect” and “runs counter”
to this Court’s precedents). See also Brief for United
States as Amicus Curiae 16, n. 2 (“The Department of
Justice, on behalf of the United States Postal Service, has
previously taken the position that pregnant employees
with work limitations are not similarly situated to em-
ployees with similar limitations caused by on-the-job
injuries”). Nor does the EEOC explain the basis of its
latest guidance. Does it read the statute, for example,
as embodying a most-favored-nation status? Why has it
now taken a position contrary to the litigation position
the Government previously took? Without further
explanation, we cannot rely significantly on the EEOC’s
determination.
C
We find it similarly difficult to accept the opposite in-
terpretation of the Act’s second clause. UPS says that the
second clause simply defines sex discrimination to include
pregnancy discrimination. See Brief for Respondent 25.
But that cannot be so.
The first clause accomplishes that objective when it
expressly amends Title VII’s definitional provision to
make clear that Title VII’s words “because of sex” and “on
the basis of sex” “include, but are not limited to, because of
or on the basis of pregnancy, childbirth, or related medical
conditions.” 42 U. S. C. §2000e(k). We have long held that
“ ‘a statute ought, upon the whole, to be so construed that,
if it can be prevented, no clause’ ” is rendered “ ‘superflu-
18 YOUNG v. UNITED PARCEL SERVICE, INC.
Opinion of the Court
ous, void, or insignificant.’ ” TRW Inc. v. Andrews, 534
U. S. 19, 31 (2001) (quoting Duncan v. Walker, 533 U. S.
167, 174 (2001)). But that is what UPS’ interpretation of
the second clause would do.
The dissent, basically accepting UPS’ interpretation,
says that the second clause is not “superfluous” because it
adds “clarity.” Post, at 4–5 (internal quotation marks
omitted). It makes “plain,” the dissent adds, that unlaw-
ful discrimination “includes disfavoring pregnant women
relative to other workers of similar inability to work.”
Post, at 5. Perhaps we fail to understand. McDonnell
Douglas itself makes clear that courts normally consider
how a plaintiff was treated relative to other “persons of
[the plaintiff ’s] qualifications” (which here include disabil-
ities). 411 U. S., at 802. If the second clause of the Act did
not exist, we would still say that an employer who disfa-
vored pregnant women relative to other workers of similar
ability or inability to work had engaged in pregnancy
discrimination. In a word, there is no need for the “clarifi-
cation” that the dissent suggests the second sentence
provides.
Moreover, the interpretation espoused by UPS and the
dissent would fail to carry out an important congressional
objective. As we have noted, Congress’ “unambiguou[s]”
intent in passing the Act was to overturn “both the holding
and the reasoning of the Court in the Gilbert decision.”
Newport News Shipbuilding & Dry Dock Co. v. EEOC, 462
U. S. 669, 678 (1983); see also post, at 6 (recognizing that
“the object of the Pregnancy Discrimination Act is to dis-
place this Court’s conclusion in [Gilbert]”). In Gilbert, the
Court considered a company plan that provided “nonoccu-
pational sickness and accident benefits to all employees”
without providing “disability-benefit payments for any
absence due to pregnancy.” 429 U. S., at 128, 129. The
Court held that the plan did not violate Title VII; it did
not discriminate on the basis of sex because there was “no
Cite as: 575 U. S. ____ (2015) 19
Opinion of the Court
risk from which men are protected and women are not.”
Id., at 138 (internal quotation marks omitted). Although
pregnancy is “confined to women,” the majority believed it
was not “comparable in all other respects to [the] diseases
or disabilities” that the plan covered. Id., at 136. Specifi-
cally, the majority explained that pregnancy “is not a
‘disease’ at all,” nor is it necessarily a result of accident.
Ibid. Neither did the majority see the distinction the
plan drew as “a subterfuge” or a “pretext” for engaging in
gender-based discrimination. Ibid. In short, the Gilbert
majority reasoned in part just as the dissent reasons here.
The employer did “not distinguish between pregnant
women and others of similar ability or inability because of
pregnancy.” Post, at 2. It distinguished between them on
a neutral ground—i.e., it accommodated only sicknesses
and accidents, and pregnancy was neither of those. See
429 U. S., at 136.
Simply including pregnancy among Title VII’s protected
traits (i.e., accepting UPS’ interpretation) would not over-
turn Gilbert in full—in particular, it would not respond to
Gilbert’s determination that an employer can treat preg-
nancy less favorably than diseases or disabilities resulting
in a similar inability to work. As we explained in Califor-
nia Fed. Sav. & Loan Assn. v. Guerra, 479 U. S. 272(1987), “the first clause of the [Act] reflects Congress’
disapproval of the reasoning in Gilbert” by “adding preg-
nancy to the definition of sex discrimination prohibited by
Title VII.” Id., at 284. But the second clause was intended
to do more than that—it “was intended to overrule the
holding in Gilbert and to illustrate how discrimination
against pregnancy is to be remedied.” Id., at 285. The
dissent’s view, like that of UPS’, ignores this precedent.
III
The statute lends itself to an interpretation other than
those that the parties advocate and that the dissent sets
20 YOUNG v. UNITED PARCEL SERVICE, INC.
Opinion of the Court
forth. Our interpretation minimizes the problems we have
discussed, responds directly to Gilbert, and is consistent
with longstanding interpretations of Title VII.
In our view, an individual pregnant worker who seeks to
show disparate treatment through indirect evidence may
do so through application of the McDonnell Douglas
framework. That framework requires a plaintiff to make
out a prima facie case of discrimination. But it is “not
intended to be an inflexible rule.” Furnco Constr. Corp. v.
Waters, 438 U. S. 567, 575 (1978). Rather, an individual
plaintiff may establish a prima facie case by “showing
actions taken by the employer from which one can infer, if
such actions remain unexplained, that it is more likely
than not that such actions were based on a discriminatory
criterion illegal under” Title VII. Id., at 576 (internal
quotation marks omitted). The burden of making this
showing is “not onerous.” Burdine, 450 U. S., at 253. In
particular, making this showing is not as burdensome as
succeeding on “an ultimate finding of fact as to” a discrim-
inatory employment action. Furnco, supra, at 576. Nei-
ther does it require the plaintiff to show that those whom
the employer favored and those whom the employer disfa-
vored were similar in all but the protected ways. See
McDonnell Douglas, 411 U. S., at 802 (burden met where
plaintiff showed that employer hired other “qualified”
individuals outside the protected class); Furnco, supra, at
575–577 (same); Burdine, supra, at 253 (same). Cf. Reeves
v. Sanderson Plumbing Products, Inc., 530 U. S. 133, 142
(2000) (similar).
Thus, a plaintiff alleging that the denial of an accommo-
dation constituted disparate treatment under the Preg-
nancy Discrimination Act’s second clause may make out a
prima facie case by showing, as in McDonnell Douglas,
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 “simi-
Cite as: 575 U. S. ____ (2015) 21
Opinion of the Court
lar in their ability or inability to work.”
The employer may then seek to justify its refusal to
accommodate the plaintiff by relying on “legitimate, non-
discriminatory” reasons for denying her accommodation.
411 U. S., at 802. But, consistent with the Act’s basic
objective, that 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 accom-
modates. After all, the employer in Gilbert could in all
likelihood have made just such a claim.
If the employer offers an apparently “legitimate, non-
discriminatory” reason for its actions, the plaintiff may in
turn show that the employer’s proffered reasons are in fact
pretextual. We believe that the plaintiff may reach a jury
on this issue by providing sufficient evidence that the
employer’s policies impose a significant burden on preg-
nant workers, and that the employer’s “legitimate, nondis-
criminatory” 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.
The plaintiff can create a genuine issue of material fact
as to whether a significant burden exists by providing
evidence that the employer accommodates a large per-
centage of nonpregnant workers while failing to accommo-
date a large percentage of pregnant workers. Here, for
example, if the facts are as Young says they are, she can
show that UPS accommodates most nonpregnant employ-
ees with lifting limitations while categorically failing to
accommodate pregnant employees with lifting limitations.
Young might also add that the fact that UPS has multiple
policies that accommodate nonpregnant employees with
lifting restrictions suggests that its reasons for failing to
accommodate pregnant employees with lifting restrictions
are not sufficiently strong—to the point that a jury could
22 YOUNG v. UNITED PARCEL SERVICE, INC.
Opinion of the Court
find that its reasons for failing to accommodate preg-
nant employees give rise to an inference of intentional
discrimination.
This approach, though limited to the Pregnancy Dis-
crimination Act context, is consistent with our longstand-
ing rule that a plaintiff can use circumstantial proof to
rebut an employer’s apparently legitimate, nondiscrimina-
tory reasons for treating individuals within a protected
class differently than those outside the protected class.
See Burdine, supra, at 255, n. 10. In particular, it is
hardly anomalous (as the dissent makes it out to be, see
post, at 8–9) that a plaintiff may rebut an employer’s
proffered justifications by showing how a policy operates
in practice. In McDonnell Douglas itself, we noted that an
employer’s “general policy and practice with respect to
minority employment”—including “statistics as to” that
policy and practice—could be evidence of pretext. 411
U. S., at 804–805. Moreover, the continued focus on
whether the plaintiff has introduced sufficient evidence to
give rise to an inference of intentional discrimination
avoids confusing the disparate-treatment and disparate-
impact doctrines, cf. post, at 8–10.
Our interpretation of the Act is also, unlike the dis-
sent’s, consistent with Congress’ intent to overrule Gil-
bert’s reasoning and result. The dissent says that “[i]f a
pregnant woman is denied an accommodation under a
policy that does not discriminate against pregnancy, she
has been ‘treated the same’ as everyone else.” Post, at 2.
This logic would have found no problem with the employer
plan in Gilbert, which “denied an accommodation” to
pregnant women on the same basis as it denied accommo-
dations to other employees—i.e., it accommodated only
sicknesses and accidents, and pregnancy was neither of
those. See Part II–C, supra. In arguing to the contrary,
the dissent’s discussion of Gilbert relies exclusively on the
opinions of the dissenting Justices in that case. See post,
Cite as: 575 U. S. ____ (2015) 23
Opinion of the Court
at 6–7. But Congress’ intent in passing the Act was to
overrule the Gilbert majority opinion, which viewed the
employer’s disability plan as denying coverage to pregnant
employees on a neutral basis.
IV
Under this interpretation of the Act, the judgment of the
Fourth Circuit must be vacated. A party is entitled to
summary judgment if there is “no genuine dispute as to
any material fact and the movant is entitled to judgment
as a matter of law.” Fed. Rule Civ. Proc. 56(a). We have
already outlined the evidence Young introduced. See Part
I–C, supra. Viewing the record in the light most favorable
to Young, there is a genuine dispute as to whether UPS
provided more favorable treatment to at least some em-
ployees whose situation cannot reasonably be distin-
guished from Young’s. In other words, Young created a
genuine dispute of material fact as to the fourth prong of
the McDonnell Douglas analysis.
Young also introduced evidence that UPS had three
separate accommodation policies (on-the-job, ADA, DOT).
Taken together, Young argued, these policies significantly
burdened pregnant women. See App. 504 (shop steward’s
testimony that “the only light duty requested [due to
physical] restrictions that became an issue” at UPS “were
with women who were pregnant”). The Fourth Circuit did
not consider the combined effects of these policies, nor did
it consider the strength of UPS’ justifications for each
when combined. That is, why, when the employer accom-
modated so many, could it not accommodate pregnant
women as well?
We do not determine whether Young created a genuine
issue of material fact as to whether UPS’ reasons for
having treated Young less favorably than it treated these
other nonpregnant employees were pretextual. We leave a
final determination of that question for the Fourth Circuit
24 YOUNG v. UNITED PARCEL SERVICE, INC.
Opinion of the Court
to make on remand, in light of the interpretation of the
Pregnancy Discrimination Act that we have set out above.
* * *
For the reasons above, we vacate the judgment of the
Fourth Circuit and remand the case for further proceed-
ings consistent with this opinion.
It is so ordered.
Cite as: 575 U. S. ____ (2015) 1
ALITO, J., concurring in judgment
SUPREME COURT OF THE UNITED STATES
_________________
No. 12–1226
_________________
PEGGY YOUNG, PETITIONER v. UNITED PARCEL
SERVICE, INC.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FOURTH CIRCUIT
[March 25, 2014]
JUSTICE ALITO, concurring in the judgment.
As originally enacted, Title VII of the Civil Rights Act of
1964, 42 U. S. C. §2000e–2(a)(1), made it an unlawful
employment practice to discriminate “because of [an] in-
dividual’s . . . sex” but made no mention of discrimina-
tion because of pregnancy. In General Elec. Co. v. Gilbert,
429 U. S. 125, 135–140 (1976), this Court held that Title
VII did not reach pregnancy discrimination. Congress
responded by enacting the Pregnancy Discrimination Act
(PDA), which added subsection (k) to a definitional provi-
sion, §2000e. Subsection (k) contains two clauses. The
first is straightforward; the second is not.
I
The first clause provides that “the terms ‘because of sex’
or ‘on the basis of sex’ include, but are not limited to,
because of or on the basis of pregnancy.”1 This clause has
the effect of adding pregnancy to the list of prohibited
grounds (race, sex, etc.) originally included in §2000e–
2(a)(1). Claims of discrimination under that provision
require proof of discriminatory intent. See, e.g., Ricci v.
——————
1 While §2000e–2(a) uses the phrase “because of . . . sex,” other provi-
sions governed by the definitions in §2000e use the phrase “on the basis
of . . . sex.” See, e.g., §§2000e–2(b), (k)(1)(A). Therefore, subsection (k)
covers this phrase as well.
2 YOUNG v. UNITED PARCEL SERVICE, INC.
ALITO, J., concurring in judgment
DeStefano, 557 U. S. 557, 577 (2009); Watson v. Fort
Worth Bank & Trust, 487 U. S. 977, 985–986 (1988).
Thus, as a result of the first clause, an employer engages
in unlawful discrimination under §2000e–2(a)(1) if (and
only if) the employer’s intent is to discriminate because of
or on the basis of pregnancy.
If an employer treats a pregnant woman unfavorably for
any other reason, the employer is not guilty of an unlawful
employment practice under §2000e–2(a), as defined by the
first clause of the PDA. And under this first clause, it does
not matter whether the employer’s ground for the unfa-
vorable treatment is reasonable; all that matters is the
employer’s actual intent. Of course, when an employer
claims to have made a decision for a reason that does not
seem to make sense, a factfinder may infer that the em-
ployer’s asserted reason for its action is a pretext for un-
lawful discrimination. But if the factfinder is convinced
that the employer acted for some reason other than preg-
nancy, the employer cannot be held liable under this
clause.
II
The PDA, however, does not simply prohibit discrimina-
tion because of or on the basis of pregnancy. Instead, the
second clause in §2000e(k) goes on to say the follow-
ing: “and women affected by pregnancy, childbirth, or re-
lated medical conditions shall be treated the same for all
employment-related purposes, including receipt of benefits
under fringe benefit programs, as other persons not so
affected but similar in their ability or inability to work.”
This clause raises several difficult questions of interpreta-
tion that are pertinent to the case now before us.
A
First, does this clause simply explain what is meant by
discrimination because of or on the basis of pregnancy? Or
Cite as: 575 U. S. ____ (2015) 3
ALITO, J., concurring in judgment
does it impose an additional restriction on employer con-
duct? I believe that this clause does not merely explain
but instead adds to the language that precedes it.
This is the interpretation that is most consistent with
the statutory text. This clause begins with the word
“and,” which certainly suggests that what follows repre-
sents an addition to what came before.
It is also revealing that the second clause makes no
reference to intent, which is the linchpin of liability under
the first clause, and that the second clause is an affirma-
tive command (an employer “shall” provide equal treat-
ment), while the first clause is negative (it prohibits dis-
crimination). If a careful drafter wanted to make it clear
that the second clause does no more than explain what is
meant by the first, the language of the second clause
would have to be substantially modified.
Finally, if the second clause does not set out an addi-
tional restriction on employer conduct, it would appear to
be largely, if not entirely, superfluous. See, e.g., Arlington
Central School Dist. Bd. of Ed. v. Murphy, 548 U. S. 291,
299, n. 1 (2006) (“[I]t is generally presumed that statutes
do not contain surplusage”). As noted, the first clause, by
adding pregnancy to the list of prohibited grounds for
adverse employment actions, mandates that discrimina-
tion because of pregnancy be treated like discrimination
because of race, sex, etc. An employer commits an unlaw-
ful employment practice if it intentionally treats employ-
ees of a particular race or sex less favorably than other
employees who are similar in their ability or inability to
work. Accordingly, the first clause of the PDA is alone
sufficient to make it clear that an employer is guilty of an
unlawful employment practice if it intentionally treats
pregnant employees less favorably than others who are
similar in their ability or inability to work.2 For these
——————
2 JUSTICE SCALIA’s dissent argues, post, at 4–6, that the second clause
4 YOUNG v. UNITED PARCEL SERVICE, INC.
ALITO, J., concurring in judgment
reasons, I conclude that the second clause does not merely
explain the first but adds a further requirement of equal
treatment irrespective of intent.
B
This leads to the second question: In determining
whether pregnant employees have been given the equal
treatment that this provision demands, with whom must
the pregnant employees be compared? I interpret the
second clause to mean that pregnant employees must be
compared with employees performing the same or very
similar jobs. Pregnant employees, the second provision
states, must be given the same treatment as other em-
ployees who are “similar in their ability or inability to
work.” An employee’s ability to work—despite illness,
injury, or pregnancy—often depends on the tasks that the
employee’s job includes. Different jobs have different
tasks, and different tasks require different abilities.
Suppose that an employer provides a period of leave with
pay for employees whose jobs require tasks, e.g., lifting
heavy objects, that they cannot perform because of illness
or injury. Must the employer provide the same benefits
for pregnant employees who are unable to lift heavy ob-
jects but have desk jobs that do not entail heavy lifting?
The answer is no. The treatment of pregnant employees
——————
serves the useful purpose of clarifying the meaning of discrimination
because of pregnancy. Without the second clause, that dissent main-
tains, there might be uncertainty as to whether an employer would
commit an unlawful employment practice if it excluded pregnancy from
an otherwise complete disability benefits program. Contrary to the
dissent, however, I think that the answer to this question would be
quite obvious based on the first clause of the PDA alone. If an employer
provided benefits for every employee who was temporarily unable to
work due to any physical condition other than pregnancy, that em-
ployer would be in the same position as an employer who provided similar
benefits for employees of every race but one. In both situations, the
employer would clearly discriminate on a prohibited ground.
Cite as: 575 U. S. ____ (2015) 5
ALITO, J., concurring in judgment
must be compared with the treatment of nonpregnant
employees whose jobs involve the performance of the same
or very similar tasks.
C
This conclusion leads to a third, even more difficult
question: When comparing pregnant employees to non-
pregnant employees in similar jobs, which characteristics
of the pregnant and nonpregnant employees must be
taken into account? The answer, I believe, must be found
in the reference to “other employees who are similar in
their ability or inability to work.” I see two possible inter-
pretations of this language. The first is that the capacity
to perform the tasks required by a job is the only relevant
characteristic, but like the Court, ante, at 12–14, I cannot
accept this “most favored employee” interpretation.
This interpretation founders when, as in this case, an
employer treats pregnant women less favorably than some
but not all nonpregnant employees who have similar jobs
and are similarly impaired in their ability to perform the
tasks that these jobs require. In this case, as I will ex-
plain below, see Part III, United Parcel Service (UPS)
drivers who were unable to perform the physical tasks
required by that job fell into three groups: first, nonpreg-
nant employees who received favorable treatment; second,
nonpregnant employees who do not receive favorable
treatment; and third, pregnant employees who, like the
nonpregnant employees in the second category, did not
receive favorable treatment. Under these circumstances,
would the “most favored employee” interpretation require
the employer to treat the pregnant women like the em-
ployees in the first, favored group? Or would it be suffi-
cient if the employer treated them the same as the non-
pregnant employees in the second group who did not
receive favorable treatment?
Recall that the second clause of §2000e(k) requires that
6 YOUNG v. UNITED PARCEL SERVICE, INC.
ALITO, J., concurring in judgment
pregnant women “be treated the same for all employment-
related purposes . . . as other persons not so affected but
similar in their ability or inability to work.” (Emphasis
added.) Therefore, UPS could say that its policy treated
the pregnant employees the same as “other persons” who
were similar in their ability or inability to work, namely,
those nonpregnant employees in the second category. But
at the same time, the pregnant drivers like petitioner
could say that UPS did not treat them the same as “other
employees” who were similar in their ability or inability to
work, namely, the nonpregnant employees in the first
group. An interpretation that leads to such a problem
cannot be correct.3
I therefore turn to the other possible interpretation of
the phrase “similar in their ability or inability to work,”
namely, that “similar in the ability or inability to work”
means “similar in relation to the ability or inability to
work.”4 Under this interpretation, pregnant and non-
——————
3 The“most favored employee” interpretation would also lead to wildly
implausible results. Suppose, for example, that an employer had a
policy of refusing to provide any accommodation for any employee who
was unable to work due to any reason but that the employer wished to
make an exception for several employees who were seriously injured
while performing acts of extraordinary heroism on the job, for example,
saving the lives of numerous fellow employees during a fire in the
workplace. If the ability to perform job tasks was the only characteris-
tic that could be considered, the employer would face the choice of
either denying any special treatment for the heroic employees or
providing all the same benefits to all pregnant employees. It is most
unlikely that this is what Congress intended. Such a requirement
would go beyond anything demanded by any other antidiscrimination
law.
4 Opinions have often used the phrase “similar in” to mean “similar in
relation to” or “similar with respect to.” See, e.g., Kiobel v. Royal Dutch
Petroleum Co., 569 U. S. ___, ___ (2013) (BREYER, J., concurring in
judgment) (slip op., at 3) (“similar in character and specificity to piracy”);
Williams v. Illinois, 567 U. S. ___, ___ (2012) (THOMAS, J., concur-
ring in judgment) (slip op., at 10) (“similar in solemnity to the Marian
examination practices that the Confrontation Clause was designed to
Cite as: 575 U. S. ____ (2015) 7
ALITO, J., concurring in judgment
pregnant employees are not similar in relation to the
ability or inability to work if they are unable to work for
different reasons. And this means that these two groups
of employees are not similar in the relevant sense if the
employer has a neutral business reason for treating them
differently. I agree with the Court that a sufficient 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 . . . whom the employer accommodates.”
Ante, at 21.5 Otherwise, however, I do not think that the
second clause of the PDA authorizes courts to evaluate the
justification for a truly neutral rule. The language used in
the second clause of the PDA is quite different from that
used in other antidiscrimination provisions that require
such an evaluation. Cf. §12112(b)(5)(A) (discrimination
against a person with a disability includes “not making
reasonable accommodations to the known physical or
mental limitations of an otherwise qualified . . . employee,
unless [the employer] can demonstrate that the accommo-
dation would impose an undue hardship on the operation
of [its] business” (emphasis added)); §2000e( j) (employer
must reasonably accommodate religious observance, prac-
tice, and belief unless that would impose an “undue hard-
ship on the conduct of the employer’s business”); §2000e–
2(k)(1)(A)(i) (business necessity defense in Title VII
disparate-impact cases).
——————
prevent”). Sykes v. United States, 564 U. S. ___, ___ (2011) (slip op., at
6) (“similar in degree of danger to that involved in arson”).
5 If cost alone could justify unequal treatment of pregnant employees,
the plan at issue in General Electric Co. v. Gilbert, 429 U. S. 125 (1976),
would be lawful. Cf. id., at 138. But this Court has repeatedly said
that the PDA rejected “ ‘both the holding and the reasoning’ ” in Gilbert.
AT&T v. Hulteen, 556 U. S. 701, 720 (2009) (GINSBURG, J., dissenting)
(quoting Newport News Shipbuilding & Dry Dock Co. v. EEOC, 462
U. S. 669, 678 (1983).
8 YOUNG v. UNITED PARCEL SERVICE, INC.
ALITO, J., concurring in judgment
III
I understand petitioner in this case to assert claims
under both the first and second clauses of §2000e(k). With
respect to her claim under the first clause, I agree with the
Court that the information in the summary judgment
record is sufficient (albeit barely) to take the question to
the trier of fact.
I believe that the judgment of the Court of Appeals with
respect to petitioner’s claim under the second clause must
also be vacated. Petitioner sought to be excused during
her pregnancy from the lifting requirements that were
among her tasks as a driver. Under the policy that United
Parcel Service claims to have had in force at the time in
question, drivers who were physically unable to perform
the tasks required by that position fell into three groups.
First, some drivers were reassigned to less physically
demanding positions. Included in this group were (a)
those who were unable to work as drivers due to an injury
incurred on the job, (b) those drivers who were unable to
work as drivers due to a disability as defined by the Amer-
icans With Disabilities Act of 1990 (ADA), and (c) those
drivers who, as the result of a medical condition or injury,
lost the Department of Transportation (DOT) certification
needed to work in that capacity.
The second group of drivers consisted of those who were
not pregnant and were denied transfer to a light-duty job.
Drivers who were injured off the job fell into this category.
The third group was made up of pregnant drivers like
petitioner.
It is obvious that respondent had a neutral reason for
providing an accommodation when that was required by
the ADA. Respondent also had neutral grounds for
providing special accommodations for employees who were
injured on the job. If these employees had not been per-
mitted to work at all, it appears that they would have
been eligible for workers’ compensation benefits. See Md.
Cite as: 575 U. S. ____ (2015) 9
ALITO, J., concurring in judgment
Lab. & Empl. Code Ann. §9–614 (2008).
The accommodations that are provided to drivers who
lost their DOT certifications, however, are another matter.
A driver may lose DOT certification for a variety of rea-
sons, including medical conditions or injuries incurred off
the job that impair the driver’s ability to operate a motor
vehicle. Such drivers may then be transferred to jobs that
do not require physical tasks incompatible with their
illness or injury. It does not appear that respondent has
provided any plausible justification for treating these
drivers more favorably than drivers who were pregnant.
The Court of Appeals provided two grounds for distin-
guishing petitioner’s situation from that of the drivers who
had lost their DOT certifications, see 707 F. 3d 437, 450
(CA4 2013), but neither is adequate. First, the Court of
Appeals noted that “no legal obstacle [stood] between
[petitioner] and her work.” Ibid. But the legal obstacle
faced by drivers who have lost DOT certification only
explains why those drivers could not continue to perform
all the tasks required by their ordinary jobs; it does not
explain why respondent went further and provided such
drivers with a work accommodation. Petitioner’s preg-
nancy prevented her from continuing her normal work as a
driver, just as is the case for a driver who loses DOT certi-
fication. But respondent had a policy of accommodating
drivers who lost DOT certification but not accommodating
pregnant women, like petitioner. The legal obstacle of lost
certification cannot explain this difference in treatment.
Second, the Court of Appeals observed that “ ‘those with
DOT certification maintai[n] the ability to perform any
number of demanding physical tasks,’ ” ibid., but it is
doubtful that this is true in all instances. A driver can
lose DOT certification due to a great variety of
medical conditions, including loss of a limb, 49 CFR
§391.41(b)(1) (2013); impairments of the arm, hand, finger,
foot, or leg, §391.41(b)(2)(i) and (ii); cardiovascular disease,
10 YOUNG v. UNITED PARCEL SERVICE, INC.
ALITO, J., concurring in judgment
§391.41(b)(4); respiratory dysfunction, §391.41(b)(5); high
blood pressure, §391.41(b)(6); arthritis, §391.41(b)(7); and
epilepsy §391.41(b)(8). It is not evident—and as far as I
am aware, the record does not show—that all drivers with
these conditions are nevertheless able to perform a great
many physically demanding tasks. Nevertheless, re-
spondent says that it was its policy to transfer such driv-
ers to so-called inside jobs when such positions were avail-
able. Presumably, respondent did not assign these drivers
to jobs that they were physically unable to perform. So in
at least some instances, they must have been assigned to
jobs that did not require them to perform tasks that they
were incapable of performing due to the medical condition
that caused the loss of DOT certification. Respondent has
not explained why pregnant drivers could not have been
given similar consideration.
For these reasons, it is not at all clear that respondent
had any neutral business ground for treating pregnant
drivers less favorably than at least some of its nonpreg-
nant drivers who were reassigned to other jobs that they
were physically capable of performing. I therefore agree
with the Court that the decision of the Court of Appeals
with respect to petitioner’s claim under the second clause
of the PDA must be vacated, and the case must be re-
manded for further proceedings with respect to that claim.
Cite as: 575 U. S. ____ (2015) 1
SCALIA, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 12–1226
_________________
PEGGY YOUNG, PETITIONER v. UNITED PARCEL
SERVICE, INC.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FOURTH CIRCUIT
[March 25, 2015]
JUSTICE SCALIA, with whom JUSTICE KENNEDY and
JUSTICE THOMAS join, dissenting.
Faced with two conceivable readings of the Pregnancy
Discrimination Act, the Court chooses neither. It crafts
instead a new law that is splendidly unconnected with the
text and even the legislative history of the Act.
To “treat” pregnant workers “the same . . . as other per-
sons,” we are told, means refraining from adopting policies
that impose “significant burden[s]” upon pregnant women
without “sufficiently strong” justifications. Ante, at 21.
Where do the “significant burden” and “sufficiently strong
justification” requirements come from? Inventiveness
posing as scholarship—which gives us an interpretation
that is as dubious in principle as it is senseless in practice.
I
Title VII forbids employers to discriminate against
employees “because of . . . sex.” 42 U. S. C. §2000e–2(a)(1).
The Pregnancy Discrimination Act adds a provision to
Title VII’s definitions section:
“The terms ‘because of sex’ or ‘on the basis of sex’ in-
clude, but are not limited to, because of or on the basis
of pregnancy, childbirth, or related medical condi-
tions; and women affected by pregnancy, childbirth, or
related medical conditions shall be treated the same
2 YOUNG v. UNITED PARCEL SERVICE, INC.
SCALIA, J., dissenting
for all employment-related purposes, including receipt
of benefits under fringe benefit programs, as other
persons not so affected but similar in their ability or
inability to work . . . .” §2000e(k).
Title VII’s prohibition of discrimination creates liability
for both disparate treatment (taking action with “discrim-
inatory motive”) and disparate impact (using a practice
that “fall[s] more harshly on one group than another and
cannot be justified by business necessity”). Teamsters v.
United States, 431 U. S. 324, 335–336, n. 15 (1977). Peggy
Young did not establish pregnancy discrimination under
either theory. She argued that United Parcel Service’s
refusal to accommodate her inability to work amounted to
disparate treatment, but the Court of Appeals concluded
that she had not mustered evidence that UPS denied the
accommodation with intent to disfavor pregnant women.
707 F. 3d 437, 449–451 (CA4 2013). And Young never
brought a claim of disparate impact.
That is why Young and the Court leave behind the part
of the law defining pregnancy discrimination as sex dis-
crimination, and turn to the part requiring that “women
affected by pregnancy . . . be treated the same . . . as other
persons not so affected but similar in their ability or in-
ability to work.” §2000e(k). The most natural way to
understand the same-treatment clause is that an employer
may not distinguish between pregnant women and others
of similar ability or inability because of pregnancy. Here,
that means pregnant women are entitled to accommoda-
tions on the same terms as other workers with disabling
conditions. If a pregnant woman is denied an accommoda-
tion under a policy that does not discriminate against
pregnancy, she has been “treated the same” as everyone
else. UPS’s accommodation for drivers who lose their
certifications illustrates the point. A pregnant woman
who loses her certification gets the benefit, just like any
Cite as: 575 U. S. ____ (2015) 3
SCALIA, J., dissenting
other worker who loses his. And a pregnant woman who
keeps her certification does not get the benefit, again just
like any other worker who keeps his. That certainly
sounds like treating pregnant women and others the
same.
There is, however, another way to understand “treated
the same,” at least looking at that phrase on its own. One
could read it to mean that an employer may not distin-
guish at all between pregnant women and others of simi-
lar ability. Here, that would mean pregnant women are
entitled, not to accommodations on the same terms as
others, but to the same accommodations as others, no
matter the differences (other than pregnancy) between
them. UPS’s accommodation for decertified drivers illus-
trates this usage too. There is a sense in which a preg-
nant woman denied an accommodation (because she kept
her certification) has not been treated the same as an
injured man granted an accommodation (because he lost
his certification). He got the accommodation and she did
not.
Of these two readings, only the first makes sense in the
context of Title VII. The point of Title VII’s bans on dis-
crimination is to prohibit employers from treating one
worker differently from another because of a protected
trait. It is not to prohibit employers from treating workers
differently for reasons that have nothing to do with pro-
tected traits. See Texas Dept. of Community Affairs v.
Burdine, 450 U. S. 248, 259 (1981). Against that back-
drop, a requirement that pregnant women and other
workers be treated the same is sensibly read to forbid
distinctions that discriminate against pregnancy, not all
distinctions whatsoever.
Prohibiting employers from making any distinctions
between pregnant workers and others of similar ability
would elevate pregnant workers to most favored employ-
ees. If Boeing offered chauffeurs to injured directors, it
4 YOUNG v. UNITED PARCEL SERVICE, INC.
SCALIA, J., dissenting
would have to offer chauffeurs to pregnant mechanics.
And if Disney paid pensions to workers who can no longer
work because of old age, it would have to pay pensions to
workers who can no longer work because of childbirth. It
is implausible that Title VII, which elsewhere creates
guarantees of equal treatment, here alone creates a guar-
antee of favored treatment.
Let it not be overlooked, moreover, that the thrust of the
Pregnancy Discrimination Act is that pregnancy discrimi-
nation is sex discrimination. Instead of creating a free-
standing ban on pregnancy discrimination, the Act makes
plain that the existing ban on sex discrimination reaches
discrimination because of pregnancy. Reading the same-
treatment clause to give pregnant women special protec-
tion unavailable to other women would clash with this
central theme of the Act, because it would mean that
pregnancy discrimination differs from sex discrimination
after all.
All things considered, then, the right reading of the
same-treatment clause prohibits practices that discrimi-
nate against pregnant women relative to workers of simi-
lar ability or inability. It does not prohibit denying preg-
nant women accommodations, or any other benefit for that
matter, on the basis of an evenhanded policy.
II
The Court agrees that the same-treatment clause is not
a most-favored-employee law, ante, at 12, but at the same
time refuses to adopt the reading I propose—which is the
only other reading the clause could conceivably bear. The
Court’s reasons for resisting this reading fail to persuade.
The Court starts by arguing that the same-treatment
clause must do more than ban distinctions on the basis of
pregnancy, lest it add nothing to the part of the Act defin-
ing pregnancy discrimination as sex discrimination. Ante,
at 17. Even so read, however, the same-treatment clause
Cite as: 575 U. S. ____ (2015) 5
SCALIA, J., dissenting
does add something: clarity. See Newport News Ship-
building & Dry Dock Co. v. EEOC, 462 U. S. 669, 678,
n. 14 (1983) (“[T]he specific language in the second clause
. . . explains the application of the [first clause]”). Just
defining pregnancy discrimination as sex discrimination
does not tell us what it means to discriminate because of
pregnancy. Does pregnancy discrimination include, in
addition to disfavoring pregnant women relative to the
workplace in general, disfavoring them relative to disabled
workers in particular? Concretely, does an employer
engage in pregnancy discrimination by excluding preg-
nancy from an otherwise complete disability-benefits pro-
gram? Without the same-treatment clause, the answers
to these questions would not be obvious. An employer
could argue that people do not necessarily think of preg-
nancy and childbirth as disabilities. Or that it would be
anomalous to read a law defining pregnancy discrimina-
tion as sex discrimination to require him to treat pregnancy
like a disability, when Title VII does not require him to
treat sex like a disability. Or that even if pregnancy were
a disability, it would be sui generis—categorically different
from all other disabling conditions. Cf. Geduldig v. Aiello,
417 U. S. 484, 494–495 (1974) (holding that a State has a
rational basis for excluding pregnancy-related disabilities
from a disability-benefits program). With the same-
treatment clause, these doubts disappear. By requiring
that women affected by pregnancy “be treated the same
. . . as other persons not so affected but similar in their
ability or inability to work” (emphasis added), the clause
makes plain that pregnancy discrimination includes disfa-
voring pregnant women relative to other workers of simi-
lar inability to work.
This clarifying function easily overcomes any charge
that the reading I propose makes the same-treatment
clause “ ‘superfluous, void, or insignificant.’ ” Ante, at 17–
18. Perhaps, as the Court suggests, even without the
6 YOUNG v. UNITED PARCEL SERVICE, INC.
SCALIA, J., dissenting
same-treatment clause the best reading of the Act would
prohibit disfavoring pregnant women relative to disabled
workers. But laws often make explicit what might already
have been implicit, “for greater caution” and in order “to
leave nothing to construction.” The Federalist No. 33, pp.
205–206 (J. Cooke ed. 1961) (A. Hamilton). That is why
we have long acknowledged that a “sufficient” explanation
for the inclusion of a clause can be “found in the desire to
remove all doubts” about the meaning of the rest of the
text. McCulloch v. Maryland, 4 Wheat. 316, 420 (1819).
This explanation looks all the more sensible once one
remembers that the object of the Pregnancy Discrimina-
tion Act is to displace this Court’s conclusion in General
Elec. Co. v. Gilbert, 429 U. S. 125 (1976), that pregnancy
discrimination is not sex discrimination. What could be
more natural than for a law whose object is superseding
earlier judicial interpretation to include a clause whose
object is leaving nothing to future judicial interpretation?
That brings me to the Court’s remaining argument: the
claim that the reading I have set forth would not suffice to
overturn our decision in Gilbert. Ante, at 18–20. Wrong.
Gilbert upheld an otherwise comprehensive disability-
benefits plan that singled pregnancy out for disfavor. The
most natural reading of the Act overturns that decision,
because it prohibits singling pregnancy out for disfavor.
The Court goes astray here because it mistakenly as-
sumes that the Gilbert plan excluded pregnancy on “a
neutral ground”—covering sicknesses and accidents but
nothing else. Ante, at 19. In reality, the plan in Gilbert
was not neutral toward pregnancy. It “place[d] . . . preg-
nancy in a class by itself,” treating it differently from “any
other kind” of condition. 429 U. S., at 161 (Stevens, J.,
dissenting). At the same time that it denied coverage for
pregnancy, it provided coverage for a comprehensive range
of other conditions, including many that one would not
necessarily call sicknesses or accidents—like “sport inju-
Cite as: 575 U. S. ____ (2015) 7
SCALIA, J., dissenting
ries, attempted suicides, . . . disabilities incurred in the
commission of a crime or during a fight, and elective cos-
metic surgery,” id., at 151 (Brennan, J., dissenting). What
is more, the plan denied coverage even to sicknesses, if
they were related to pregnancy or childbirth. Ibid. For
that matter, the plan denied coverage to sicknesses that
were unrelated to pregnancy or childbirth, if they were
suffered during recovery from the birth of a child. Ibid.Gilbert, there can be no doubt, involved “the lone exclusion
of pregnancy from [a] program.” Ibid. The most natural
interpretation of the Act easily suffices to make that
unlawful.
III
Dissatisfied with the only two readings that the words of
the same-treatment clause could possibly bear, the Court
decides that the clause means something in-between. It
takes only a couple of waves of the Supreme Wand to
produce the desired result. Poof!: The same-treatment
clause means that a neutral reason for refusing to accom-
modate a pregnant woman is pretextual if “the employer’s
policies impose a significant burden on pregnant workers.”
Ante, at 21. Poof!: This is so only when the employer’s
reasons “are not sufficiently strong to justify the burden.”
Ibid.How we got here from the same-treatment clause is
anyone’s guess. There is no way to read “shall be treated
the same”—or indeed anything else in the clause—to
mean that courts must balance the significance of the
burden on pregnant workers against the strength of the
employer’s justifications for the policy. That is presum-
ably why the Court does not even try to connect the inter-
pretation it adopts with the text it purports to interpret.
The Court has forgotten that statutory purpose and the
presumption against superfluity are tools for choosing
among competing reasonable readings of a law, not au-
8 YOUNG v. UNITED PARCEL SERVICE, INC.
SCALIA, J., dissenting
thorizations for making up new readings that the law
cannot reasonably bear.
The fun does not stop there. Having ignored the terms
of the same-treatment clause, the Court proceeds to bun-
gle the dichotomy between claims of disparate treatment
and claims of disparate impact. Normally, liability for
disparate treatment arises when an employment policy
has a “discriminatory motive,” while liability for disparate
impact arises when the effects of an employment policy
“fall more harshly on one group than another and cannot
be justified by business necessity.” Teamsters, 431 U. S.,
at 336, n. 15. In the topsy-turvy world created by today’s
decision, however, a pregnant woman can establish dis-
parate treatment by showing that the effects of her em-
ployer’s policy fall more harshly on pregnant women than
on others (the policies “impose a significant burden on
pregnant workers,” ante, at 21) and are inadequately
justified (the “reasons are not sufficiently strong to justify
the burden,” ibid.). The change in labels may be small,
but the change in results assuredly is not. Disparate-
treatment and disparate-impact claims come with differ-
ent standards of liability, different defenses, and different
remedies. E.g., 42 U. S. C. §§1981a, 2000e–2(k). For
example, plaintiffs in disparate-treatment cases can get
compensatory and punitive damages as well as equitable
relief, but plaintiffs in disparate impact cases can get
equitable relief only. See §§1981a, 2000e–5(g). A sound
reading of the same-treatment clause would preserve the
distinctions so carefully made elsewhere in the Act; the
Court’s reading makes a muddle of them.
But (believe it or not) it gets worse. In order to make
sense of its conflation of disparate impact with disparate
treatment, the Court claims that its new test is somehow
“limited to the Pregnancy Discrimination Act context,” yet
at the same time “consistent with” the traditional use of
circumstantial evidence to show intent to discriminate in
Cite as: 575 U. S. ____ (2015) 9
SCALIA, J., dissenting
Title VII cases. Ante, at 22. A court in a Title VII case,
true enough, may consider a policy’s effects and even its
justifications—along with “ ‘all of the [other] surrounding
facts and circumstances’ ”—when trying to ferret out a
policy’s motive. Hazelwood School Dist. v. United States,
433 U. S. 299, 312 (1977). The Court cannot possibly
think, however, that its newfangled balancing test reflects
this conventional inquiry. It has, after all, just marched
up and down the hill telling us that the same-treatment
clause is not (no-no!) “ ‘superfluous, void, or insignificant.’ ”
Ante, at 17–18. If the clause merely instructed courts to
consider a policy’s effects and justifications the way it
considers other circumstantial evidence of motive, it would
be superfluous. So the Court’s balancing test must mean
something else. Even if the effects and justifications of
policies are not enough to show intent to discriminate
under ordinary Title VII principles, they could (Poof !) still
show intent to discriminate for purposes of the pregnancy
same-treatment clause. Deliciously incoherent.
And all of this to what end? The difference between a
routine circumstantial-evidence inquiry into motive and
today’s grotesque effects-and-justifications inquiry into
motive, it would seem, is that today’s approach requires
judges to concentrate on effects and justifications to the
exclusion of other considerations. But Title VII already
has a framework that allows judges to home in on a pol-
icy’s effects and justifications—disparate impact. Under
that framework, it is already unlawful for an employer to
use a practice that has a disparate impact on the basis of a
protected trait, unless (among other things) the employer
can show that the practice “is job related . . . and con-
sistent with business necessity.” §2000e–2(k)(1)(A)(i).
The Court does not explain why we need (never mind how
the Act could possibly be read to contain) today’s ersatz
disparate-impact test, under which the disparate-impact
element gives way to the significant-burden criterion and
10 YOUNG v. UNITED PARCEL SERVICE, INC.
SCALIA, J., dissenting
the business-necessity defense gives way to the sufficiently-
strong-justification standard. Today’s decision can thus
serve only one purpose: allowing claims that belong under
Title VII’s disparate-impact provisions to be brought
under its disparate-treatment provisions instead.
IV
JUSTICE ALITO’s concurrence agrees with the Court’s
rejection of both conceivable readings of the same-
treatment clause, but fashions a different compromise
between them. Under its approach, an employer may
deny a pregnant woman a benefit granted to workers who
perform similar tasks only on the basis of a “neutral busi-
ness ground.” Ante, at 10 (opinion concurring in judg-
ment). This requirement of a “business ground” shadows
the Court’s requirement of a “sufficiently strong” justifica-
tion, and, like it, has no footing in the terms of the same-
treatment clause. As the concurrence understands the
words “shall be treated the same,” an employer must give
pregnant workers the same accommodations (not merely
accommodations on the same terms) as other workers
“who are similar in their ability or inability to work.”
Ante, at 3–4. But the concurrence realizes that requiring
the same accommodations to all who are similar in ability
or inability to work—the only characteristic mentioned in
the same-treatment clause—would “lead to wildly implau-
sible results.” Ante, at 6, n. 3. To solve this problem, the
concurrence broadens the category of characteristics that
the employer may take into account. It allows an em-
ployer to find dissimilarity on the basis of traits other than
ability to work so long as there is a “neutral business
reason” for considering them—though it immediately adds
that cost and inconvenience are not good enough reasons.
Ante, at 7. The need to engage in this text-free broadening
in order to make the concurrence’s interpretation work is
as good a sign as any that its interpretation is wrong from
Cite as: 575 U. S. ____ (2015) 11
SCALIA, J., dissenting
the start.
* * *
My disagreement with the Court is fundamental. I
think our task is to choose the best possible reading of the
law—that is, what text and context most strongly suggest
it conveys. The Court seems to think our task is to craft a
policy-driven compromise between the possible readings of
the law, like a congressional conference committee recon-
ciling House and Senate versions of a bill.
Because Young has not established that UPS’s accom-
modations policy discriminates against pregnant women
relative to others of similar ability or inability, see supra,
at 2, she has not shown a violation of the Act’s same-
treatment requirement. I would therefore affirm the
judgment of the Court of Appeals for the Fourth Circuit.
Cite as: 575 U. S. ____ (2015) 1
KENNEDY, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 12–1226
_________________
PEGGY YOUNG, PETITIONER v. UNITED PARCEL
SERVICE, INC.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FOURTH CIRCUIT
[March 25, 2015]
JUSTICE KENNEDY, dissenting.
It seems to me proper, in joining JUSTICE SCALIA’s
dissent, to add these additional remarks. The dissent is
altogether correct to point out that petitioner here cannot
point to a class of her co-workers that was accommodated
and that would include her but for the particular limita-
tions imposed by her pregnancy. Many other workers
with health-related restrictions were not accommodated
either. And, in addition, there is no showing here of ani-
mus or hostility to pregnant women.
But as a matter of societal concern, indifference is quite
another matter. There must be little doubt that women
who are in the work force—by choice, by financial necessity,
or both—confront a serious disadvantage after becom-
ing pregnant. They may find it difficult to continue to
work, at least in their regular assignment, while still
taking necessary steps to avoid risks to their health and
the health of their future children. This is why the diffi-
culties pregnant women face in the workplace are and do
remain an issue of national importance.
“Historically, denial or curtailment of women’s employ-
ment opportunities has been traceable directly to the
pervasive presumption that women are mothers first, and
workers second.” Nevada Dept. of Human Resources v.
Hibbs, 538 U. S. 721, 736 (2003) (quoting The Parental
2 YOUNG v. UNITED PARCEL SERVICE, INC.
KENNEDY, J., dissenting
and Medical Leave Act of 1986: Joint Hearing before the
Subcommittee on Labor–Management Relations and the
Subcommittee on Labor Standards of the House Commit-
tee on Education and Labor, 99th Cong., 2d Sess., 100
(1986)). Such “attitudes about pregnancy and childbirth
. . . have sustained pervasive, often law-sanctioned, re-
strictions on a woman’s place among paid workers.”
AT&T Corp. v. Hulteen, 556 U. S. 701, 724 (2009)
(GINSBURG, J., dissenting). Although much progress has
been made in recent decades and many employers have
voluntarily adopted policies designed to recruit, accommo-
date, and retain employees who are pregnant or have
young children, see Brief for U. S. Women’s Chamber of
Commerce et al. as Amici Curiae 10–14, pregnant employ-
ees continue to be disadvantaged—and often discriminated
against—in the workplace, see Brief of Law Professors
et al. as Amici Curiae 37–38.
Recognizing the financial and dignitary harm caused by
these conditions, Congress and the States have enacted
laws to combat or alleviate, at least to some extent, the
difficulties faced by pregnant women in the work force.
Most relevant here, Congress enacted the Pregnancy
Discrimination Act (PDA), 42 U. S. C. §2000e(k), which
defines discrimination on the basis of pregnancy as sex
discrimination for purposes of Title VII and clarifies that
pregnant employees “shall be treated the same” as non-
pregnant employees who are “similar in their ability or
inability to work.” The PDA forbids not only disparate
treatment but also disparate impact, the latter of which
prohibits “practices that are not intended to discriminate
but in fact have a disproportionate adverse effect.” Ricci
v. DeStefano, 557 U. S. 557, 577 (2009). Congress further
enacted the parental-leave provision of the Family and
Medical Leave Act of 1993, 29 U. S. C. §2612(a)(1)(A),
which requires certain employers to provide eligible em-
ployees with 12 workweeks of leave because of the birth of
Cite as: 575 U. S. ____ (2015) 3
KENNEDY, J., dissenting
a child. And after the events giving rise to this litigation,
Congress passed the ADA Amendments Act of 2008, 122
Stat. 3553, which expands protections for employees with
temporary disabilities. As the parties note, Brief for Peti-
tioner 37–43; Brief for Respondent 21–22; Brief for United
States as Amicus Curiae 24–25, these amendments and
their implementing regulations, 29 CFR §1630 (2015),
may require accommodations for many pregnant employ-
ees, even though pregnancy itself is not expressly classi-
fied as a disability. Additionally, many States have en-
acted laws providing certain accommodations for pregnant
employees. See, e.g., Cal. Govt. Code Ann. §12945 (West
2011); La. Rev. Stat. Ann. §23:342(4) (West 2010); W. Va.
Code Ann. §5–11B–2 (Lexis Supp. 2014); see also Califor-
nia Fed. Sav. & Loan Assn. v. Guerra, 479 U. S. 272 (1987)
(holding that the PDA does not pre-empt such statutes).
These Acts honor and safeguard the important contribu-
tions women make to both the workplace and the Ameri-
can family.
Today the Court addresses only one of these legal pro-
tections: the PDA’s prohibition of disparate treatment.
For the reasons well stated in JUSTICE SCALIA’s dissenting
opinion, the Court interprets the PDA in a manner that
risks “conflation of disparate impact with disparate treat-
ment” by permitting a plaintiff to use a policy’s dispropor-
tionate burden on pregnant employees as evidence of
pretext. Ante, at 8; see ante, at 21–22 (opinion of the
Court). In so doing, the Court injects unnecessary confu-
sion into the accepted burden-shifting framework estab-
lished in McDonnell Douglas Corp. v. Green, 411 U. S. 792(1973).
With these remarks, I join JUSTICE SCALIA’s dissent.