Proving Gender Discrimination: Young and Pao’s Courageous Stand

On Behalf of | April 8, 2015 | Gender Discrimination, Harassment

Last month was big for those interested in the fight for gender equity in the workplace, as two largely publicized cases reached important turning points. On Wednesday, March 25, 2015, the United States Supreme Court ruled in favor of Peggy Young in her pregnancy discrimination case against her employer, UPS.  On Friday, March 27, 2015, a jury found against Ellen Pao in her gender discrimination case against her employer Kleiner Perkins. These outcomes may seem at odds. However, taken together, they shed important light on the challenges of litigating gender discrimination claims in the absence of overtly discriminatory acts.

Peggy Young’s case began in 2006 when she became pregnant after several miscarriages while working as a driver for UPS.  Based on her doctor’s instructions not to lift more than 20 pounds during her pregnancy, Young temporarily requested lighter-duty work.  Yet, instead of accommodating her request, UPS placed Young on unpaid leave without employee medical coverage for the remainder of her pregnancy.  Young sued her employer, alleging UPS intentionally discriminated against her when it failed to provide her with accommodation since UPS provides the very accommodations she had requested to non-pregnant employees.

In its defense, UPS countered it could not possibly be discriminating against Young, as the decision to deny Young the accommodation she requested was grounded in a “pregnancy-neutral” policy — that is, UPS only offers accommodation to employees who (1) were injured on the job, (2) lost their Department of Transportation Certification, or (3) were considered disabled under the Americans with Disabilities Act. Young had been denied accommodation because she did not fall into any of these three categories, irrespective of her status as a pregnant woman.

In essence, Young’s case turned on convincing the Supreme Court that intentional pregnancy discrimination may still exist, even in the absence of overtly discriminatory policies. The Supreme Court already recognized that Title VII’s ban on discrimination precludes employers from implementing policies that have discriminatory effects (in other words, a “disparate impact”) even if the employer did not intend its policies to have such an impact.  However, Young was alleging more than a “disparate impact” theory of liability. Young was arguing UPS had subjected her to “disparate treatment” due to her pregnancy, that is to say, UPS has intentionally discriminated against her. Thus to go before a jury, Young’s “disparate treatment” claim required showing something different than a discriminatory effect, but what precisely Young needed to show remained for the Supreme Court to decide.

To its credit, the Supreme Court recognized that the mere presence of a “pregnancy-neutral” policy was not sufficient to keep a discrimination claim from the jury. Instead, the Supreme Court articulated a multi-part test, requiring Young to first show that some non-pregnant workers received some favorable treatment for their inability to do their normal jobs. UPS must then show it did not intend to discriminate against pregnant workers with this favorable treatment, but instead had a neutral, business-related decision for its policies.  Then, Young must show that the policy puts a significant burden on female workers, and the reason for the policy was not strong enough to justify the burden. According to the Court, if Young could make such a showing, Young should be able to bring her claims before a jury.

This decision is good news for Young and working pregnant women across the country.  In addition to giving Young her day in court, the multi-part test may signify recognition on the part of the Court that a “new face” of discrimination pervades the workplace today. This newer form of discrimination is more subtle than the overt discrimination of the past and may be harder to prove than simply identifying an actor’s isolated state of mind or articulating a neutral practice with adverse consequences. As many commentators have already noted, the Young decision still leaves many questions unanswered as to what must be shown to support an inference of “disparate treatment” in the absence of an overtly discriminatory policy.  However, at the very least, the decision demonstrates a faint understanding that discrimination involving “disparate treatment” in this day and age may be more understated than a policy or act that explicitly treats employees differently and that those alleging this more subtle discrimination should still be given their day in court.

That being said, having one’s day in court is still no guarantee of victory, as Ellen Pao’s loss demonstrated, a mere two days after the Supreme Court’s ruling in Young. Much like Young’s case, Pao’s success also turned on convincing the court, this time through a jury, that discrimination exists even in the absence of overly discriminatory acts. Unfortunately for Pao, the jury was not convinced. With ten out of the twelve jurors finding in favor of her employer, Pao lost on all four of her discrimination and retaliation claims against Kleiner Perkins.

Nonetheless, taken together, the Young and Pao cases demonstrate that a courtroom victory is merely one means to a much bigger end. And that end, namely gender equity in the workplace, may be achieved without providing clear proof of gender discrimination to a jury or a judge.  Indeed, Ellen Pao may have lost before her jury, but Kleiner Perkin’s dirty laundry has been aired, and many other tech companies are now recognizing the importance of immediately addressing claims of gender discrimination. At the very least, Kleiner Perkins now has a sexual harassment policy, which only came into existence in 2012, after Pao filed her complaint. Likewise, though Peggy Young has yet to go before a jury, UPS has voluntarily elected to change its policies to better accommodate pregnant women. As such, these cases show that mere act of taking a stance against gender discrimination can have significant consequences, irrespective of whether a jury or judge is ultimately convinced by the evidence before it.