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Justices' Rulings Show Common Threads Of Textual Readings, Conflicts on Deference

Occupational Safety & Health Daily—Kevin McGowan

Whether statutory text controls in construing federal laws and whether courts should defer to agency interpretations of allegedly ambiguous statutes or regulations are recurring themes in recent U.S. Supreme Court employment decisions, according to lawyers addressing an American Bar Association conference April 17.

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In Young, the Supreme Court decided 6-3 that a former UPS driver denied light duty as an accommodation for pregnancy-related lifting restrictions has a triable PDA disparate treatment claim when the delivery company offered light duty to other non-pregnant employees with temporary lifting restrictions (58 OHD, 3/26/15).

But the court declined to follow an EEOC guidance on pregnancy-related issues under the PDA and Americans with Disabilities Act that was issued just two weeks after the justices granted review.

Young‘s practical message for employers may be “to be really careful about carving out exceptions” to workplace accommodation policies. — Paul Mollica of Outten & Golden

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The Young majority said it would be patently unfair to impose liability on UPS for the same practice the federal government supported at the U.S. Postal Service, Dreiband said. Breyer was quite critical of the EEOC, saying the agency's timing was suspicious and rejecting the EEOC's argument that its PDA interpretation was long-standing, Dreiband said.

But the court also rejected UPS's views and held that former employee Peggy Young might be able to prove a PDA disparate treatment claim based on UPS's prior light-duty policy. While the case was pending before the Supreme Court, UPS announced that, beginning in January 2015, pregnant employees with work restrictions would be eligible for light duty.

‘Reaffirmation' of McDonnell Douglas

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In pregnancy employment cases, there's a human-level problem that most employers don't win through rigid rules, said Paul Mollica, a plaintiffs' attorney with Outten & Golden in Chicago.

But Young‘s practical message for employers may be to be really careful about carving out exceptions to workplace accommodation policies, Mollica said.

The majority opinion is interesting because McDonnell Douglas Corp. v. Green, 411 U.S. 792, 5 FEP Cases 965 (1973), “makes a roaring appearance” even though the case could have been decided based on the PDA's unusual language or on direct evidence because of a supervisor's alleged anti-pregnancy comments, Mollica said.

As a result, Young is a very nice reaffirmation of the McDonnell Douglas burden-shifting paradigm for discrimination claims resting on indirect or circumstantial evidence, Mollica said

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Religious Bias Case Still Pending

Still pending is EEOC v. Abercrombie & Fitch, in which the justices are considering whether the retailer violated Title VII of the 1964 Civil Rights Act by not hiring an applicant who wore a Muslim head scarf, or hijab, to her interview for a sales position.

A district court had granted summary judgment on liability to the EEOC and a jury subsequently awarded $20,000 in compensatory damages for Samantha Elauf, the rejected applicant. But the U.S. Court of Appeals for the Tenth Circuit ruled 2-1 that Abercrombie & Fitch was entitled to summary judgment, because Title VII requires an applicant or employee to notify the employer of a religious conflict and her need for accommodation. Because Elauf had never disclosed why she was wearing a hijab or requested accommodation, Abercrombie can't be liable under Title VII, the Tenth Circuit held.

The Supreme Court's Feb. 25 oral argument was very illustrative as most of the justices seemed to be asking why the Abercrombie hiring manager didn't just describe the retailer's look policy and ask Elauf if she could comply, Mollica said. Based on the argument, the justices apparently are looking for “a sensible way” in which employers don't have to quiz applicants about their religion but can get information about whether applicants can comply with work policies or if a conflict exists, he said.

While the case raises a Title VII issue about how to show an employer had notice that a religious accommodation might be required, Mollica said the decision also might be relevant for human resources, regarding how to conduct job interviews consistently with anti-discrimination laws.

Mollica said he is loath to predict Supreme Court results from an oral argument but that in this case, good facts for the plaintiff might make good law

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How Much Judicial Review of EEOC?

In Mach Mining LLC v. EEOC, the court heard oral argument Jan. 13 on whether the EEOC's efforts to conciliate a discrimination charge prior to an agency lawsuit under Title VII are subject to judicial review. Alone among the federal appeals courts that have considered the issue, the Seventh Circuit in Mach Mining held that no judicial review is available if the EEOC makes a facial showing that it invited the employer to conciliate and no settlement acceptable to the commission was reached.

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Mollica said big circuit splits exist among the courts that allow judicial review of EEOC conciliation efforts about how much scrutiny is warranted. The justices at argument seemed aware that “either way they go will cause problems,” he said. The court doesn't want to create a satellite litigation with discovery and extensive review of EEOC's pre-suit conciliation efforts, Mollica said. But at the argument Breyer seemed to express a common view that at least some judicial review is warranted.

“We're going to get something in the middle,” Mollica predicted.

The Seventh Circuit likely will be reversed, but it's an open question what standard of review the court endorses, Dreiband said. The standard will be fairly deferential to the EEOC, and the question is how much leeway district courts will have to review the agency's settlement efforts, he said.