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.