Today’s Two-fer Tuesday in the Second Circuit: a pregnancy discrimination case is returned for retrial, in light of the intervening decision in Young v. United Parcel Service, Inc., 135 S. Ct. 1338 (2015); and a panel holds that a state human-resource professional’s opposition to changes in the EEO complaint-reporting procedures is not a “protected activity” under Title VII.
Legg v. Ulster County, No. 14-3636 (2d Cir. Apr. 26, 2016): Before the Supreme Court clarified the standards in the Young case last term, it was uncertain what particular obligation an employer covered by Title VII might have to provide accommodations to pregnant workers.
Thus, in this case, the district court held (prior to Young) that a light-duty policy which applied only to employees injured on-duty did not violate the Pregnancy Discrimination Act. The Second Circuit confirms that Young potentially requires a different result.
Ms. Legg worked at a jail as a corrections officer. Like other employers before the Young case, the employer excluded pregnant employees from its “light-duty” policy in place for injured employees:
“At the time, the County maintained a policy under which employees injured on the job were eligible for light duty assignments, defined as clerical and other duties that would not aggravate the employee’s condition. Under Sheriff VanBlarcum’s implementation, the policy did not apply to pregnant employees because their condition did not result from a line‐of‐duty injury.”
At first, during Ms. Legg’s pregnancy, the jail accommodated her with light-duty work. But it eventually reassigned her back to regular duty, working directly with inmates.
“While working in a cell block in November, by then approximately seven months pregnant, Legg came upon two inmates fighting in the bathroom and was bumped as one ran past her. As a result of this incident, she left work and did not return until after she gave birth.”
Ms. Legg sued for pregnancy discrimination in violation of Title VII. There were also claims by Ms. Legg and other plaintiffs for sex‐based hostile work environment in violation of Title VII and 42 U.S.C. § 1983.
At trial, the judge granted judgment as a matter of law (JMOL) to the defendants on the pregnancy claim, at the close of Ms. Legg’s case. The district court held that the light-duty policy “applied across the board to everyone,” and so did not discriminate as a matter of law. (The jury later awarded a verdict to one of Legg’s co-plaintiffs for harassment.)
On appeal, the Second Circuit vacates the JMOL. It holds that after Young, Ms. Legg could make out a claim for pregnancy discrimination. Young confirmed that pregnant employees had to be treated as similarly-situated persons with physical restrictions who were not pregnant.
The Young Court held that a modified version of the McDonnell Douglas prima facie test applied: (i) “that she belongs to the protected class,” (ii) “that she sought accommodation,” (iii) “that the employer did not accommodate her,” and (iv) “that the employer did accommodate others ‘similar in their ability or inability to work.'”
Here, Ms. Legg presented sufficient evidence that a jury could find a violation:
“She sought a light duty accommodation while pregnant. The County did not accommodate her. And, as a matter of policy, the County provided light duty accommodations to other employees who were similar in their ability or inability to work, namely, those who were unable to perform non‐light‐duty tasks as a result of injuries incurred on‐duty. These facts are enough, if left unexplained, for a reasonable jury to conclude that it is more likely than not that the policy was motivated by a discriminatory intent.”
While the employer argued that it had a legitimate, non-discriminatory reason for its decision (compliance with state law), the panel observes that a jury could find that reason to be pretextual. Among other reasons, (1) the employer had never offered that justification at trial; (2) any alleged burden on the jail was contradicted by the history that 176 corrections officers had previously received accommodations, and Ms. Legg was the one and only pregnant CO who sought light-duty; and (3) Ms. Legg suffered a significant burden by being placed to a choice of unpaid leave or serious risk to her health.
And although There was doubtlessly a cost-factor to the employer, “Young expressly cautioned, however, that cost alone is generally not a legitimate basis for refusing to accommodate pregnant employees on the same basis as other employees similar in their ability or inability to work.”
(The appeal also posed a novel question of whether the jail waived an appeal of the harassment verdict by filing a belated Rule 50, post-verdict motion. The panel holds that the 28-day filing period was not jurisdictional, though, and that the district court should consider on remand whether the late-filing should be excused on equitable grounds.)
Cooper v. N.Y. State Dep’t of Labor, No. 15-3392 (2d Cir. Apr. 26, 2016): Section 704(a) provides a remedy against employers that penalize workers “because [they have] opposed any practice made an unlawful employment practice by this subchapter.” While courts have interpreted such “opposition activity” quite broadly – including even activity that does not strictly violate Title VII, but that an employee might reasonably believe does so – the “unlawful employment practice” language does place some outer limit on the section’s coverage.
Here, the plaintiff learned that the Governor’s Office of Employee Relations (“GOER”) intended to “alter the means by which internal [Equal Employment Opportunity (“EEO”)] complaints were to be handled by state agencies, including the” state Department of Labor. plaintiff challenged these changes, and the office eventually backed off. “[B]ut, in April 2013, she was fired, allegedly in retaliation for having lobbied against GOER’s proposal.”
The district court dismissed the complaint, and the Second Circuit affirms. In a brief per curiam opinion, the panel holds simply that objecting to changes to an employer’s internal policy for administering EEO complaints was not a protected activity under Title VII (or the equivalent New York state law):
“The conduct she opposed – the amendment of internal procedures in a manner that, she believed, would permit political considerations to influence the evaluation of discrimination claims – is not a ‘practice made an unlawful employment practice’ by Title VII. 42 U.S.C. § 2000e‐3(a). Nor could Cooper reasonably have believed otherwise.”
The plaintiff ventured a theory that the conduct was “protected because she opposed a practice that, if adopted, would have increased the likelihood of future unredressed Title VII violations.” But the panel holds that merely seeking “to ensure that hypothetical victims of discrimination received a fair shake does not mean that she ‘possessed a good faith, reasonable belief’ … that accepting GOER’s proposal would have qualified as an ‘unlawful employment practice.'”