Carrie Lavalley v. E.B. & A.C. Whiting Company
No. 94-657
Supreme Court of Vermont
January 17, 1997
692 A.2d 367
Present: Allen, C.J., Gibson, Dooley, Morse and Johnson, JJ.
Finally, VSC appeals the Board‘s grant of the Federation‘s unit clarification petition. The Board did not declare whether the bargaining unit included any particular position, but rather, directed that VSC provide the faculty assembly “the opportunity to consider the Colleges’ proposed removal from the faculty bargaining unit of duties performed by the faculty member serving as Director of Student Teaching” — essentially the same relief granted in the appeal under Article 19(C)(6). There was no error in this narrow direction to the College.
Affirmed.
Christopher A. Micciche, Burlington, for Defendant-Appellee.
Jeffrey L. Amestoy, Attorney General, Seth A. Steinzor, Assistant Attorney General, and Melissa Jurgens, Law Clerk, Montpelier, for Amicus Curiae State of Vermont.
Dooley, J. Plaintiff Carrie Lavalley claims that defendant, E.B. and A.C. Whiting Company, discriminated against her on the basis of sex in violation of the Vermont Fair Employment Practices Act,
Plaintiff is a full-time employee at defendant‘s plant, where she earns $359.20 per week. She works on a production line as a cutter/packer, responsible for cutting long bundles of plastic fibers produced at the plant. She is required to stand throughout the shift and to lift heavy items.
In March 1991, plaintiff advised defendant that she was pregnant and unable to perform her job requirements. She presented defendant with a note from her physician stating that her condition rendered her unable to stand for extended periods of time and made it difficult for her to perform heavy lifting. Plaintiff asked defendant to accommodate her for the duration of her pregnancy either by having a co-worker assist her with heavy lifting or by temporarily assigning her to light duty. Defendant denied plaintiff‘s request to be accommodated on the job, and pursuant to the company‘s disability policy, classified her disability as a long-term, nonwork-related injury, and placed her on disability leave with half-pay of $160 per week. On July 5, 1991, plaintiff gave birth and, after her maternity leave, returned to her former job at full pay.
Defendant‘s policy divides workers into those whose disability is work-related and qualifies them for workers’ compensation benefits, and those whose disability is not work-related. The former are encouraged to accept whatever accommodations are possible, and compatible, with their ability to work. If alternative work is available, workers in this category are placed in it. Whatever the accommodation, including the placement in alternative work, the employees in this category receive full pay as long as they work.
The second category, those with nonwork-related disabilities, is further divided into two subcategories. The first subcategory is made
Plaintiff brought an action alleging that defendant discriminated against her on account of her pregnancy, violating Vermont‘s Fair Employment Practices Act (FEPA). See
Both parties moved for summary judgment, and the superior court granted defendant‘s motion. The court reasoned:
Here, the Plaintiff has not presented evidence proving discriminatory motive. In fact, the practice of paying half salary for long term non-work-related illness was motivated by a union contract, not gender. The Plaintiff‘s reduction in salary was not due to her gender or pregnancy, but the length of time and physical limitations created by her condition.
Even if we assume that the Plaintiff established gender as the motivating factor, we could not conclude that the Defendant violated Vermont‘s Fair Employment Practices Act. Defendant‘s decision to pay the plaintiff fifty percent of her salary during the time she was unable to substantially perform her employment was made and would have been absent any discriminatory motive.
Plaintiff appealed the court‘s decision to this Court.
Before we address the reasoning of the trial court, we must examine the basic premise of plaintiff‘s claim — that discrimination
Defendant is correct that FEPA is patterned after Title VII of the Civil Rights Act, Graff v. Eaton, 157 Vt. 321, 323, 598 A.2d 1383, 1384 (1991), and makes it unlawful for any employer to discriminate against any individual because of his or her sex.
We start with two preliminary points. First, this is not a case where the Legislature has adopted a statute patterned on the statute of another state or the United States after a determinative court decision interpreting the model statute. Where the court decision precedes our adoption, “the presumption is that the Legislature also adopted the construction given the statute by the courts of the other [jurisdiction].” Hartnett v. Union Mut. Fire Ins. Co., 153 Vt. 152, 154, 569 A.2d 486, 487 (1989). The section of FEPA that sets out the regulatory standard was adopted in 1963. 1963, No. 196, § 1. It was amended to include sex discrimination in 1971, 1971, No. 9, § 1, and was again amended in 1976 to its current form.2 1975, No. 198 (Adj. Sess.), § 1. All of the legislative action preceded the date of the Gilbert decision. Thus, there is no presumption that the Legislature intended to adopt the construction of the statute in Gilbert. See State v. Wilcox, 160 Vt. 271, 273 n.1, 628 A.2d 924, 925 n.1 (1993).
Second, although Vermont has patterned FEPA on Title VII, we are not bound by federal court interpretations of Title VII in
We make these points to emphasize that we will not adopt an interpretation of FEPA solely because the federal courts, including the United States Supreme Court, have so interpreted Title VII. Nor do we believe that the Vermont Legislature must react to every federal decision interpreting Title VII or risk that its inaction will be interpreted as an endorsement of the federal decision.
In this case, we are more persuaded by the decisions of the courts of our sister states, which have overwhelmingly found in interpreting similar or identical statutes that pregnancy discrimination can be sex discrimination. See Colorado Civil Rights Comm‘n v. Travelers Ins. Co., 759 P.2d 1358, 1365 (Colo. 1988); Massachusetts Elec. Co. v. Massachusetts Comm‘n Against Discrimination, 375 N.E.2d 1192, 1199 (Mass. 1978); Minnesota Mining & Mfg. Co. v. State, 289 N.W.2d 396, 398-99 (Minn. 1979); Bankers Life & Casualty Co. v. Peterson, 866 P.2d 241, 244 (Mont. 1993); Castellano v. Linden Bd. of Educ., 386 A.2d 396, 402 (N.J. Super. Ct. App. Div. 1978), rev‘d in part on other grounds, 400 A.2d 1182, 1183 (N.J. 1979); Brooklyn Union Gas Co. v. New York State Human Rights Appeal Bd., 359 N.E.2d 393, 397 (N.Y. 1976); Anderson v. Upper Bucks County Area Vocational Technical Sch., 373 A.2d 126, 130 (Pa. Commw. Ct. 1977); Frank‘s Shoe Store v. West Virginia Human Rights Comm‘n, 365 S.E.2d 251, 257 (W. Va. 1986); Kimberly-Clark Corp. v. Labor & Indus. Review Comm‘n, 291 N.W.2d 584, 586 (Wis. 1980). We agree with the reasoning of the Massachusetts Supreme Judicial Court that “[p]regnancy is a condition unique to women, and the ability to become pregnant is a primary characteristic of the female sex. Thus any classification which relies on pregnancy as the determinative criterion is a distinction based on sex.” Massachusetts Elec. Co., 375 N.E.2d at 1198.
We also believe that Gilbert is a weak precedent upon which to rely, given the later congressional action. The Gilbert decision has been roundly criticized. See, e.g., California Fed. Sav. & Loan Ass‘n v. Guerra, 479 U.S. 272, 284-85 (1987). In enacting the Pregnancy
Having determined that plaintiff‘s claim does not fail because discrimination against pregnant women can never be sex discrimination, we must determine whether FEPA was violated in this case. Plaintiff argues this as a case of disparate treatment and claims that the trial court erred in applying the burden-shifting rules that apply to such claims.
We have held that the standards and burdens of proof under FEPA are identical to those existing under Title VII of the federal Civil Rights Act of 1964. Hodgdon, 160 Vt. at 161, 624 A.2d at 1128; Graff, 157 Vt. at 323, 598 A.2d at 1384. In a series of decisions, we have applied the two main United States Supreme Court precedents that define these standards and burdens in a disparate-treatment case, McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), and Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) (superseded in part by Civil Rights Act of 1991, Pub. L. No. 102-166, § 107, 105 Stat. 1071, 1075 (1991) (codified at
Unlike the employment policy in Gilbert and virtually all of the pregnancy discrimination cases, the policy does not specifically condition any employment or benefit rule on pregnancy. Indeed, the policy is facially neutral and affects pregnant women because their temporary disability, and those of others both male and female, is not work related. See Adams, 962 F.2d at 794-95 (policy that determines availability of light-duty assignments to those with “non-work related injury or illness” is not discriminatory if applicable to all such persons without intent to discriminate against pregnant workers); Ulloa v. American Express Travel Related Servs. Co., 822 F. Supp. 1566, 1571 (S.D. Fla. 1993) (no disparate treatment where pregnant employee who was terminated for taking leave of absence exceeding twelve weeks failed to show she was treated less favorably than nonpregnant employees who took leave of absence exceeding twelve weeks); Atwood v. City of Des Moines, 485 N.W.2d 657, 660 (Iowa 1992) (police department‘s change in light-duty policy was not pregnancy discrimination where new policies accorded pregnant police officer same rights as were available prospectively to all other employees); see generally Wimberly v. Labor & Indus. Relations Comm‘n, 479 U.S. 511, 517 (1987) (state unemployment compensation rule that denies benefits to those who leave jobs for nonwork-related reasons is facially neutral and does not discriminate against pregnant worker).
Nevertheless, disability schemes that are facially neutral with respect to pregnancy may still be subject to a disparate-impact claim. See, e.g., Scherr v. Woodland Sch. Community Consol. Dist. No. 50, 867 F.2d 974, 979 (7th Cir. 1988) (facially neutral practices that have disparate impact on pregnant women can constitute pregnancy discrimination under Title VII). Under a disparate-impact theory, the plaintiff is relieved of the burden of having to show that the employer acted with discriminatory intent; rather, the plaintiff need only show that the employment practice has a discriminatory impact on a protected class and is not justified by business necessity. See, e.g., EEOC v. Warshawsky & Co., 768 F. Supp. 647, 651 (N.D. Ill. 1991).
Plaintiff, however, failed to present either to the superior court or to this Court a claim of disparate impact. A theory of disparate impact should be pled specifically in the complaint. See Johnson v. Allyn & Bacon, Inc., 731 F.2d 64, 73 (1st Cir.) (disparate-impact theory not presented to trial court cannot be raised for first time on appeal), cert. denied, 469 U.S. 1018 (1984); 2 L. Larson, Employment Discrimination § 20.03, at 20-13 (2d ed. 1994) (“[A]t-tempts to parlay a disparate treatment case into a disparate impact case at a later stage of the litigation will usually not succeed if the pleadings did not allege facts sufficient to provide the requisite fair notice to the defendant . . . .“). Even if plaintiff has made a disparate-impact claim, we have no record of the impact of defendant‘s policy, except on plaintiff. We do not know whether the policy has a disproportionate impact on women employees generally.4 Nor do we know that the entire policy has a negative impact on pregnant women generally.5
Some courts have held that, under the PDA, the proper comparison in disparate-treatment or disparate-impact cases is between pregnant women and nonpregnant persons. See EEOC v. Ackerman, Hood & McQueen, Inc., 956 F.2d 944, 948 (10th Cir.) (comparison in pregnancy discrimination claim is between pregnant women and nonpregnant workers), cert. denied, 506 U.S. 817 (1992); Maganuco v. Leyden Community High Sch. Dist. 212, 939 F.2d 440, 444 (7th Cir. 1991) (to establish claim that sick leave policy had disparate impact on pregnant women, comparison is between women disabled due to pregnancy and male coworkers or women who have not experienced pregnancy-related disability). The Tenth Circuit Court in Ackerman reasoned:
The [PDA] requires courts to inquire whether the employer treats pregnancy or pregnancy-related conditions differently than other medical conditions . . . .
. . . The clear language of the PDA requires the court to compare treatment between pregnant persons and “other persons not so affected but similar in their ability or inability to work.” The comparison is, therefore, between pregnant and nonpregnant workers, not between men and women.
Id. at 948 (quoting
Others hold that, because the PDA was a definitional amendment, it did not add a new cause of action for pregnancy discrimination. Warshawsky, 768 F. Supp. at 653. The Warshawsky court concluded, therefore, that “the statistical analysis under a disparate impact theory is the traditional ‘sex discrimination’ analysis.” Id. at 654 (footnote omitted). In other words, the comparison is between female employees and male employees. See id. at 655 (finding disparate impact where first-year female employees were more likely to be fired than first-year male employees).
Because of the failure of plaintiff to produce evidence of the impact of defendant‘s policy, we do not have to determine how we will resolve this question under FEPA.
The policy distinction that plaintiff challenges is fundamentally rooted in the workers’ compensation laws, which provide that a worker who “receives a personal injury by accident arising out of and in the course of his employment” is entitled to compensation as provided by law.
In view of the separate statutory scheme for workers who are injured in the course of their employment, we cannot conclude that the Legislature intended FEPA to reach the gender consequences of that statutory scheme. We do not accept the dissent‘s argument that there need be no consistency between an employer‘s disability benefits policy and its disability employment policy. As noted above, the workers’ compensation laws provide rights to both replacement income and retraining and job placement to restore the worker to suitable employment. If we accept plaintiff‘s argument here, we are necessarily holding that the governmental foundation for the distinctions defendant‘s policy draws are also discriminatory. We conclude that defendant did not discriminate against plaintiff on account of sex in violation of
Affirmed.
I.
The majority resolves this case simply by concluding that the employer‘s practice of treating employees injured on the job better than those injured off the job is appropriate and nondiscriminatory. The majority reasons that, since defendant‘s accommodation scheme employs the same classification as the workers’ compensation program, defendant‘s program cannot be considered discriminatory. I disagree. The workers’ compensation program predates FEPA and was designed for a different purpose. The goal of workers’ compensation is to provide for speedy and relatively uncomplicated resolution of employees’ claims against employers for injuries received on the job. See Morrisseau v. Legac, 123 Vt. 70, 76, 181 A.2d 53, 57 (1962); DeGray v. Miller Bros. Constr. Co., 106 Vt. 259, 274, 173 A. 556, 562 (1934). In exchange for assuring employees a remedy “both expeditious and independent of proof of fault,” the liability of employers is limited and definitely established. Morrisseau, 123 Vt. at 76, 181 A.2d at 57. As the New York Court of Appeals has noted, laws prohibiting discrimination in employment and laws mandating benefits for disabled workers are “skew lines,” passing each other without intersection, and establishing different, but not conflicting, minimum requirements for employers. Brooklyn Union Gas Co. v. New York State Human Rights Appeal Bd., 359 N.E.2d 393, 396 (N.Y. 1976) (objective of human rights law was quite different from, though not necessarily at odds with, older disability benefits law).
Defendant cannot, of course, be subject to a discrimination claim for extending workers’ compensation benefits only to those disabled on the job — that is, for doing what is required by law. But rather
The majority glosses over this argument, noting merely that plaintiff did not allege “that the employer treated nonpregnant employees with nonwork-related injuries more favorably” than plaintiff. 166 Vt. at 212, 692 A.2d at 371. In doing so, the majority simply accepts the employer‘s classification at face value. But plaintiff‘s claim challenges the classification drawn by the employer. She points to other disabled employees who have been given the benefit of light-duty jobs at full pay, and alleges that she is similarly situated to those employees. The majority disregards this argument, in effect assuming that the employer is entitled to decide which employees are similarly situated to plaintiff. I see no reason to accept defendant‘s argument, that plaintiff should be compared to other employees denied accommodation, over plaintiff‘s claim that she is similarly situated in her ability to work to employees who have received light duty.
Consider an analogy. Both state and federal governments have special programs that classify people with disabilities, providing benefits to people who fit in certain categories. See, e.g.,
This is especially true where, as here, defendant has employed a classification that always excludes pregnant women from job opportunities. Employers have a long history of firing pregnant women or imposing mandatory (unpaid) leave, without reference to an individual woman‘s ability to perform her job. These arbitrary, discriminatory policies have helped to keep women from achieving parity with men in the workplace. See H.R. Rep. No. 948, 95th Cong., 2d Sess. 6 (1978), reprinted in 1978 U.S.C.C.A.N. 4749, 4754. The federal Pregnancy Discrimination Act (PDA) was specifically intended to prohibit employers from making arbitrary decisions about pregnant women‘s capacity for employment. Id. According to the House Report on the PDA, employer requirements and benefits, including the practice of “transferring workers to lighter assignments,” must be “administered equally for all workers in terms of their actual ability to perform work.” Id. at 5, reprinted in 1978 U.S.C.C.A.N. at 4753. This standard is reflected in the language of the PDA, which states 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.”
The PDA makes explicit the standard that, logically, must be used to evaluate a claim under the mandate the Court adopts today — that pregnant women must receive equal treatment on the job. A pregnant woman must be treated in the workplace according to her individual ability to work. There is nothing unique about the federal statutory language; in light of the history of arbitrary and unreasonable restrictions imposed on pregnant workers, it is the only reasonable way to interpret the mandate that pregnant women receive equal treatment on the job. Plaintiff‘s claim is based on this standard. She complains that her request for light duty was not evaluated in light of her individual ability to work. Instead, she was sent home from work and forced to take a low-paying disability leave, when other similarly disabled employees were given light-duty work at full pay. In my opinion, she has made a colorable claim of discrimination that should survive defendant‘s motion for summary judgment.
II.
The majority can easily disregard the validity of plaintiff‘s claim because it decides this case without reference to the standards and
Plaintiff‘s case should be evaluated, like any claim of disparate treatment, in light of the shifting-burden analysis first established by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973), and later applied to FEPA claims by this Court. See Hodgdon v. Mt. Mansfield Co., 160 Vt. 150, 159, 624 A.2d 1122, 1127 (1992); State v. Whitingham Sch. Bd., 138 Vt. 15, 19, 410 A.2d 996, 998-99 (1979). Under that scheme, plaintiff has the initial burden of establishing a prima facie case of disparate treatment. Hodgdon, 160 Vt. at 159, 624 A.2d at 1127. “This burden is a relatively light one,” see id., and plaintiff has met it. She has established that: 1) as a pregnant woman, she is a member of a protected class; 2) she asked her employer to accommodate her by providing alternate, light-duty work when she was unable to perform her usual job due to a pregnancy-related disability; 3) her employer refused to accommodate her and instead required her to take disability leave at reduced pay, and 4) her employer has provided such accommodation to workers who are not members of the protected class, that is, men. In my opinion, these facts are sufficient to raise an inference of discrimination; if otherwise unexplained, a court could presume that
“[O]nce plaintiff has established a prima facie case, the burden shifts to the employer ‘to articulate some legitimate, nondiscriminatory reason’ for its conduct. Hodgdon, 160 Vt. at 159, 624 A.2d at 1127 (quoting McDonnell Douglas, 411 U.S. at 802). Although the ultimate burden of persuasion remains at all times with plaintiff, Burdine, 450 U.S. at 253, the employer must rebut the presumption of discrimination with a nondiscriminatory explanation of the challenged conduct. This forces the parties to properly frame the factual issue before the court: the employer must provide a legitimate reason for its conduct, and the employee must persuade the court that the proffered explanation is a pretext for discrimination. Id. at 254-56. In effect, this is no different from plaintiff‘s ultimate burden of persuasion; to persuade the court that the employer intentionally discriminated against her, plaintiff must show that the nondiscriminatory reason given by the employer was not the true reason for the employment decision. Id. at 256.
Here, the employer has provided an explanation for its refusal to accommodate plaintiff. Defendant maintains that the decision to accommodate a disabled employee turns on whether the employee was injured on or off the job. Employees injured at work are accommodated, while employees who are injured off the job are required to take disability leave. Thus, according to defendant, its decision not to accommodate plaintiff was based not on her sex or pregnancy but on the fact that her disability was not work-related.
To succeed in her claim, then, plaintiff must persuade the trier-of-fact that the explanation given by defendant is a pretext for discrimination against pregnant women. She can do so “either directly by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer‘s proffered explanation is unworthy of credence.” Id. Although additional evidence could strengthen plaintiff‘s case, she is not obligated at this point to come forward with new evidence. She can rest on the evidence introduced to support her prima facie case. See id. at 255 n.10 (although legally-mandated presumption of discrimination drops from case when employer provides nondiscriminatory explanation for
The majority apparently believes that a facially neutral policy can be challenged only on the basis of its discriminatory impact. I cannot accept this conclusion. It is not inconceivable that an employer would design a facially neutral classification such as this one with an intent to exclude pregnant women from benefits provided to other employees. With a growing female workforce, employers may be increasingly reluctant to pay for costs associated with pregnancy. Regardless of how a classification appears on its face, however, an employer may not adopt it with an intent to discriminate against a protected class. I believe that plaintiff is entitled to go to trial on her disparate-treatment claim, and attempt to persuade the court that defendant‘s facially neutral policy is a pretext for discrimination against pregnant women. I therefore dissent.