by her doctor to avoid lifting more than fifty pounds a common restriction during pregnancy but when ms durham asked term ploy or rural metro to make it possible for her to comply with this directive into temporarily reassigned her the company refused and it refused even though it routinely made such reassignments for non pregnant workers workers unaffected we we've got that  i think it's where a load is born and the question is is it the same to say ok the rule that applies to everybody is on the job off the job so you're treated the same so your honor that was the question that was squarely before the supreme court in young a putatively gender neutral policy that u p s had in place that it affected actually three categories of workers including those injured on the job as well as those protected by the aviator entitle to accommodations under the a da and then those who had lost their commercial driver's licenses including due to non medical reasons like a dui and what the court in young said was we've got to look to the statute we've got to look to the plain terms of the statute which requires that pregnant workers be treated the same as others similar in their ability or inability to work and to raise an inference that that provision has been violated it's a very low young laid out a new prime of facia standard specifically for accommodation cases and so you're going to have your argument is that well accommodated not only on the job injuries but also policy that they extended to to pregnant workers the problem we have here is that metro was acquired by another company and they took no steps to retain any of the documents that are relevant to this case despite receiving  notification from counsel about imminent litigation so we have no comparative evidence we don't know how they treated how well they treated others under the a t a i we don't know what they did for them or how does that pro chicago structure i am i am conflating them but your honor and i apologize it does point out the nd major error in the district court's reasoning which was with respect to pretext she did go on to those with on the job injuries didn't seem like a little group to me it might be that there was no triable issue at all on on on whether there was a policy was discriminatory so from from your point of view if we agree with you on that point then do we simply remain then say oh go back and get the prima fascia part right and then leave the district courts to figure out what young actually means in this kind of case because the reason i raise it is to me the district court in my view messed up a bunch of stuff but the underlying issue of an on the job off the job distinction or can accompany make  any accommodations and not accommodate pregnant women across the board is a very important one so should we say anything about that or should we just say next district court take your best shot well  issue but we believe because of the many deficiencies in the record here in the in the that the burden of production was not satisfied by rural metro that in fact it should be remanded for trial but they wouldn't they wouldn't get a chance to show their legitimate nondiscriminatory reason or that that there's no evidence to show intentional discrimination even by inference they've stated already that they're legitimate nondiscriminatory reason that she wasn't given the same accommodations light duty as those injured on the job is because she was not injured on the job yet so that circular reasoning is with the supreme well but but but but then well you're saying we need to find as a matter of law that an on the job off the job distinction is never adequate no your honor but it's at it's adequate for the prime official case but then that takes us back to your sane don't decide this tough question well let it start out at another district court the other thing i would say about the pretext issue with respect to the why we don't accommodate people who haven't been injured on the job is that there are thirty six deponent had no input had no answer to that question so what i'm saying oh i thought i understood that you had no answer for the the deep reasoning behind it but on  know you don't want to accommodate people who sprained her ankle playing basketball and you have workman's comp issues for on the job so do you have to have a witness to give you  know the g c memo or does there have to be a g c memo when there's a fairly obvious reason room or may not be a good reason but it's a fairly obvious reason the supreme court said it's not just enough to make these per se distinctions or even just to rely on a worker's comp statute they were the employer has to has to show that that reason for denying accommodation to pregnant worker and not extent pregnant workers and not extending that same benefit must be similar scuse me sufficiently strong to justify the burden on the plane your position it is a matter of law that can't be satisfied let is that this this this or this distinction which is a fairly plausible and obvious distinction a pregnant workers don't get the same benefit but the record already reflects that that reason is completely insufficient both because they have no reason to provide and because in fact her direct supervisor said he was perfectly happy to create a job for her which is perfectly happy if somebody told him to no your honor he spoke to his supervisors don't get to make the policy and it is entirely rational and probable to the point we have to take notice of the possibility that owned that job injuries cost company a tremendous amount if they let the employee  for worker's comp so if you have a small number of featherbedding or create positions or what ever you call them it's in the company's best financial interest which is almost always a sufficient  neutral reason to give those positions to folks who fall for workers comp if you don't keep them on the payroll i mean that is just self evident i know what happened in this about we're going to give you a little bit more time if you need it but what happened in this case is you've got a company that's got ten thousand employees in twenty five different states according to the record in the br and open up our just send it back for the district court to do a do over they're going to get the word down stream are they have an affidavit from company and court is where it is saying this is the reason for the policy and then you'll have to meet that which is how it ought to work if i may your honor i'm what i'm talking about the the reason you're the sufficiently strong reason i'm not saying that light duty policies for people who have been injured on the job don't make financial sense for companies that's understood what i'm talking about is why in a given case and that's why it shouldn't be the prime official stage it should be at the pretext stage after discovery workforce by workforce workplace by workplace which are all distinct and have distinct abilities and needs why couldn't this pregnant worker have also been extended this benefit are you found that that was sufficient  if they had come forward and said the reason for our policy is because we can't afford to not accommodate people who are injured on the job because of workers compensation but we're not going to extend it to anybody else because they can't afford that also then that would be a different case then in that case they would have demonstrated a legitimate business reason in the absence of any evidence by your client the case to be off or would you agree with convenience also is not sufficiently strong but let me ask you this why is your problem here that in this case all they say is we just accommodate on the job ensur that's it they don't say why they just accommodate on the job injury and so it's a they are broad enough production to come forward with a legitimate business reason and a jury might find after they hear the testimony about well we don't know why we do this or what happened that that could be pretext is that what you're saying and but that but that is a credibility call as to whether they're believable or not when there's no in young and the sort of animating purpose of young which is why when you've accommodated this other group can you not accommodate pregnancy as well it's less about the decision to accommodate folks with on the job injuries but rather why couldn't you also do it for the pregnant worker too and i'll push back a little bit chief judge on your point about this being a lower level person just trying to do a favor the p a policy actually provided for h r and the manager to work together on in figuring out what an accommodation could be and their position in saying that there were no available jobs for her for which they also have no documentary evidence was based purely on the word of the local manager or her supervisor that he didn't have anything well but i mean i read the record and maybe maybe this is a credibility determination i don't know what is the create a job doesn't mean a useful job doesn't mean a uneconomical job is you know you tell me to create a job and i'll do it and the the problem i have is one can always accommodate a particular plaintiff ok a big company or even a small company one or two people never hurts but doesn't that collapse into saying that the pregnant claimant is always going to win even though the person who you know injured themselves playing basketball or lifting a car or saving a person from a burning building they all lose because it isn't a reasonable distinction on the job off the job that i mean how would you distinguish a policy that could work is there any policy a company could have that excluded pregnant women not facially your you're on or no i don't think i'm sorry i'm sorry that doesn't make sense suppose i said nobody will get it created jobs if you can't do the job you're in you can't work for us i think that would that stage but you're saying young i mean the problem i have is that the way you put the strength of the argument it's hard to see how your view of young leaves any any policy available well for instance your honor i i think that we would concede that certain policies that the court characterized as most favored nation or sorry characterized as triggering a most favored nation status that would be impermissible such as people in specific especially dangerous jobs or people with a certain level of seniority those are certain distinctions that would that would work but i i me maybe i'm wrong to me on the job off the job makes as much sense as more than ten years less than ten years well act on the job off the job st so i do want to just get us back  centered that that should not satisfy the prime official case and when when you when you get to the pretext stage i understand that that seems a sensible distinction but the question is why couldn't pregnant workers be accom a dozen young end up with raises an inference of intentional discrimination and any of these fairly bright line rule seniority on the job off the job how can you get to an inference of intentional discrimination when you're discriminating against the guy with a basketball injury the person who saves somebody from a burning building how did how can that possibly be that you're intentionally discriminating against pregnant women by doing that well congress didn't make a decision that people who hurt their backs playing basketball face systemic economic disc a nation because of that condition they made those findings with pregnancy and so that's of the respondent here the apple eat here is why not pregnancy i'm not asking you to about of the responses because we don't have to and the reason we don't have to is we treat everybody the same if you get injured on the job well well comedy if you don't get injured if your injury or disability or effect is because of off the job we don't accommodate you the supreme court  your honor with respect the supreme court said that kind of bright line is not acceptable any longer well we don't want it for instance or we don't have to decide in every case we're looking at the facts in this case straight so in this case is the problem here that for different people were asked what is the reason for this policy and everyone said well i don't know and that enough it's self at least for purposes of pretense it doesn't meet the burden to show why it is a legitimate business reason isn't that the problem here absolutely and i go further your honor that it wasn't just about on the job injury the reason for that policy but also why wasn't she otherwise accommodated we don't have any job listings we don't know anything about what else i mean if they had said if everybody who was asked had said look we would like to accommodate everybody but we can't it's expensive we have to accommodate people who are injured on the job because it's more expensive for us to have to pay workers comp then it is to deal with this right but we can't expand it to everybody because it's too expensive for us to do it to everybody so we have made a business decision to do this if they had done that if they had said that then that would be done the problem is there's this question as to why they did it and no one seems to know and you never solve this record and this particular record that raises a question well was it really a legitimate business reason or were you trying to cover because you just didn't want to cover up pregnant people right right your honor and the record testimony of or not testimony but account of the of  s durham of her phone call with h r were the st the st statement was this is what we do for pregnancy the only option for you is on paid leave the p t a and young demand more than that of an employer and and i would i would i'm sorry that we got a bit away from talking about what workplace that does grapple with these issues might actually look like but it is we've we've given you a dexter moment  it please the court my name is heidi wilbur and i'm representing the defendant apple lever all metro corp the question part of this dispute is whether an employee can maintain a light duty policy that is only offered to workers injured on the job without violating the pregnancy discrimination act as interpreted by the supreme court and young vs u p s as a larger today young versus u p s does not prohibit employers from maintaining a light duty policy the one issue in this case additionally the district court in this case correctly held that mr m failed to the for in demonstrating that rural metro intentionally treated her less favorably because of her pregnancy there's three key points i want to make today what if the reason for the on the job was to exclude back to women well there's no evidence that that i know but there's no evidence it was a we don't know it's just a popsy well the policy itself in this case does explain a little bit about  the purpose of the policy well so it mentions that it is the purpose is to get injured workers to transition them back to work there's also some testimony from mr crowley who was mr m supervisor that he  they had to do this for light duty workers so they don't have testimony about the problem why did they have to do it for a lot of duty workers i don't think he explains that in the record well i mean suppose you said we have to do it because they're not pregnant well that would be a problem but there's no test but don't you have to justify the neutral reason on some grounds that doesn't use criminal to get pregnant women because they're pregnant they have to articulate a  the plaintiffs just has to show that they're there that record that that reason might be suspect and why can't the plaintiff show that it might be suspect when nobody can explain what the basis is for that reason well i think they still can't show that it's suspect because everybody had the same reason throughout the record so everyone said this is the reason because of this but let me ask you this you would agree that if the reason was because they didn't want to cover pregnant people that would be a problem right that would be a problem ok the problem is that what they were asked what the reason yes and nobody gave an answer so why isn't that a possible reason as to why they had the most of the time distance of a policy or an explanation of policy and articulation of a policy is enough and going back historically why was this an act what were the explanation for how this came to affect if you have a policy saying workers will be explain right i mean young has all these different categories the people who lost their commercial driver's licenses the people who are injured on the job whatever there's a bunch of different categories but not going to women and so the  case is a man there and it doesn't really get to the pretext issue but it's kind of suggests that if you can explain that you need to explain why all these different groups are covered but pregnant women are not right i mean would you agree that that's kind of the implication of young not exactly i would say that in young the issue was that because the employer comment in so many different groups that it was hard to find a way to distinguish a pregnant employee from members in those groups the th circuit really had to sort of bend over backwards to say well there's a legal obstacle in the way for d o t certification there's all these other justification and the effect of having an aggregation of so many policies that were common in so many different types of him always was that it had the effect of excluding private employees but in this case we have just one policy  on the job injury policy and the people who are excluded from that policy are not just pregnant workers so it's not just people who identify as that us but also many other types of employees i mean it would have been so easy for them to just if the reason why is what we've discussed right now it just expensive workers compensation blah blah blah it would be so easy for them to say that i mean why does that not beg the question the fact that multiple people did not say that and had no answer to that that maybe they were covering for pregnancy discrimination why does that not beg the question i think in this case there is a unique situation where the company these employees were no longer there anymore and  the company was absorbed by another company and so there's sort of a lack of it's your burden right get your clients brought in to come forward and give the legitimate business reason it was within your client's control to say we're doing it from you know it's too expensive to have to accommodate everybody we have to do the injured on the job people because it's less expensive than just doing straight rubberstamp i mean you that was your burden to come forward with that if anybody would have that information it would be your client why is it unfair to put your client to that burden well i think that the client did come forward with some evidence about having to do this for light duty and the fact that the people who were testifying were lower level be on edge or who maybe didn't have that institutional knowledge and didn't want to g policy and then it's up to the plaintiff to undermine it now is the real difference there where that makes it clear that the employer has to give all the reasoning behind the policy i would equate it to being similar to title seven in that they still just have to articulate the burden well i mean if it's a bad if it's a bad policy be fairly easy to undermine if it's just a question of grading their papers of how good the the litigating attorney was or whether she could this bonding applies only in p t s d cases doesn't it say that yes so but don't we have to consider that fact you have to consider it but also with the added requirement of showing that there's a significant burden on workers which elisabet easy that that is the burden if she doesn't get accommodated she doesn't get paid right but in looking at it seemed easy to me and looking at it comparatively are pregnant workers facing a significant burden as compared to other employees so young does speak in terms of the pretax in terms of categories and that pregnant women are category excluded in the young decision here that's not the case and again i mean how can you say they're not categorically excluded with respect to pregnancy i suppose if a pregnant woman were injured on the job than she would she would get accommodated right that's a fact but on the other hand a pregnant woman off the job is not injured or otherwise is categorically excluded just the same way that people who injure their themselves in a car wreck or playing basketball are categorically excluded but the burden would not be more significant on pregnant women than with more significant the question is does young in all the many things young says talk about more bird or does just talk about a significant burden i think in a disparate treatment case we're talking about comparing employees you have to look at the comparison of employees their comparison is because we're trying to company and that there may be a different policy for the ten thousand employee twenty five state new company i don't believe the new policy of the new company is in the record we just have the old one at this time but both the record establishes this came under changed from the company yes and so there's no way of knowing whether the people of the old company adopted that in order to discriminate against pregnant people because your client didn't present any evidence and that right well there is no evidence about how the policy was initially created but this is a policy that is an extremely common type of policy that even others either courts and even judge alito occurrence concurrence and young recognizes that this is a common and neutral reason for making a distinction the distinction between on the job injuries and off the job so if you were litigating the next case and deposition you would ask did you adopt this policy to discriminate against pregnant women that would be a good question to include another that would say no when you're after the room but of course this record indicates said say i don't know i didn't adopt a policy right but there is no indication that it was done with any inference of discrimination toward pregnant workers i want to jump back to another one of my points which is to talk more about that prima fascia analysis even after young a court is still can allowed to consider similarities and differences between workers beyond the nature of their work limitations german's essentially asking this court to hold that they have essentially automatically establishes a prima fascia case of discrimination whenever an employer has a policy that provides light duty to employees with occupational injuries not to pregnant workers but what's the difference if it automatically establishes that if you can get it immediately at the pretexting age by just presenting the  reason that we've been discussing which is you know worker's comp stuff well i think there still is a distinction in terms of how the burdens shift and in terms of how the district court handled it in this case well let me ask you question though why does it matter ultimately i mean it's not like it imposes any additional burden and the employer employee someone move in for summary judgment the employer is going to come forward with a legitimate business reason bless just in case the district court finds that there was a prime aphasia case and sometimes a district court will just say it doesn't matter whether there's a crime a fish a case because we have a legitimate business reason and we don't have evidence of pretext so why is it unfair to the employer if it automatically results in there being a crime a facia case under circumstances like this as long as the pretext stage the employer can come forward with a legitimate business reason and get summary judgment i would say that it's unfair to the employer but i would say that young definitely still leaves the door open for a court to make a distinction at the other similarities and differences in determining who other persons are so disposition if a court is only permitted to consider work limitations if a pregnant worker with a lifting restriction similar to not being at work or with a lifting restriction regardless of whether there's any other reason to distinguish the employees i think the supreme court in young clearly goes on to reject that approach looking at the text of the p a which requires employers to treat workers the same as other persons rather than any other persons or all other persons it also it compares pregnant employees to persons who are similar in their ability to work rather than identical and the supreme court but doesn't that make it broader i mean if you're similar in your ability to work then map that is broader than being the same as your ability to work is that it is but in this case we have the same as ability to work which is or then is required right because we have people who are pregnant who have lifting restrictions and people who are injured on the job who have lifting restrictions they are exactly the same in their ability to work as far as the lifting restrictions go right isn't that qualify under this similar in their ability to walk language literally factor that comes into play here and again and young the supreme court propose the following question that acknowledging that congress clearly intended to allow differences in treatment arising out of special duties actual service and special need why would it also allow courts to take account of differences special causes which by recognizing special causes  such as it mentions people who are injured in extra hazardous conditions the court is implicitly giving legitimacy to policies providing special treatment to workers injured on the job if you look at the application of young also those with disabilities those who lost their d o t certification and there was evidence that they had taught your company accommodated people who had disabilities at least as far as required by the yes they do and there's multiple witnesses who testified that that they include they interpreted that policy to also include pregnant workers as well and so that policy was applying to durham in this case i'm sorry so you does that mean that she would have been able to be protected under the a da to the extent that she qualified right is that what you meant by that that's correct rule metro's policy was for any it to a six months but pregnancy lasts for nine months and then after the livery i mean there might be additional complications so on its face isn't that problematic how does that accommodate a pregnant person to the same extent well the same problem would exist with their light duty policy which was also supposed to be limited to three months and could be extended for longer but no more than six months so they have the same issue in terms of time but for the accommodation policy one of the accommodations in that policy would be reassignment and in this case there's a lot of evidence in the record that rome metro was considering trying to reassign mr ohm but there simply was no positions available this is a small organisation mr crowley only supervised approximately eight dollars to ten dollars dispatchers and there's significant evidence of him testifying that he did look into whether those positions were available and with only eight dollars to ten dollars positions at issue it was very easy for him to determine that there were none available at the time and if you had a person with an on the job injury what they were effectively gifted cards used the word featherbedding you would just create it like another dispatcher and have them sit in the corner actually testify that they would they have not created any dispatcher positions for light they're created something else but they are creating a work of a temporary work assignment so some filing in the office and that was even still subject to availability and there were six people that she cited on the record that were accommodate in that why it was three or four and some of those accommodations policy so back to the application of the prima facia test the court held that there was a genuine material fact as to whether young satisfy the th problem of the prima fascia test and i just want to draw the court attention to two key statements in that application of that test here st of all on page two hundred and thirty one of the opinion the court holds that there is a genuine dispute a material fact as to whether u p s provided more favorable treatment to at least some required to show that those who own the employer favored and those whom the employer disfavored are similar in all but the protective ways the statement is perfectly illustrated by young where the employer carved out so many reasons for a com various types of employees that it made it difficult if not impossible to distinguish young situation from all of the people who'd been accommodated there for young was similar to an at least some of these employees in all ways except her protected status that's to employees and the transitional work program because she was not injured on the job and she's joined in that distinction by numerous other individuals individuals who are disabled individuals with off off the job injuries and perhaps other individuals as well and therefore the district court properly determined that durham's failure to submit any evidence that employees with non work related injuries doomed her case another point i want to make today is that young persons u b s does allow employers to offer special accommodations to workers with occupational injuries during suggests that the young decision was essentially a death now for light duty policies restricted to individuals injured on the job but that reading of young is not supported by the decision st of all young repeatedly acknowledges that the p t a was not intended to grant pregnant workers most favored nation status the supreme court considered and explicitly rejected young's argument that if any subset of workers receives an accommodation that accommodation must also be given to pregnant employees and the supreme court addressed this issue head on in several places leading when  explicitly rejected e e o c guidance which sought to make a hardline rule that employers cannot deny light to you to pregnant employees based on a policy that limits light duty to workers and on the job also as i mentioned earlier the court specific questions any role that would prohibit differences in treatment arising out of special causes furthermore the court doesn't explicitly address or take issue with the outcome of some of the lower court rulings that permitted employers to distinguish between workers injured on the job and others but again all that is taken care of at the fascia stage if there's a clear reason to distinguish the employee's so in conclusion this case is easily distinguishable from young which involved an aggregation of policies that have the combined effect of singling out pregnant ask you a question about this though i mean under you're now assessed let's assume that there was evidence that the reason that they did that's it let's assume that the reason that they did it was to discriminate against pregnant people isn't that a problem past summary judgment and that if you had evidence they did it to discriminate against pregnant women you were not of the st class that's true the ultimate goal for a plaintiff here is that they have to prove that there is an inference of intentional discrimination and durham didn't satisfy that burden here thomas i have a question suppose you had a trucking company load litigation budget and they had a policy not to hire anyone who had policy couldn't we take notice that it's obvious when they have that policy i mean do you have to have somebody come and said we don't want drunks driving these big trucks which w all go back to what i noted in my initial argument the in korea under young is less about why do they favor one particular group it's why is pregnancy  it is a reasonable reason your honor but there are i think we're in a people with dui convictions aren't protected i know that i know that i'm just simply saying people of a minority race a majority race any race are protected and he says the reason they didn't me is my race and the company says no you had to d convictions and they don't explain the basis for that policy right it's obvious it's as obvious as having a policy that we will find a job for someone who's injured on the job promoted or being denied a or being demoted we would be in the kind of analytical framework that you're talking about but it's baked in to clause two that pregnant workers are to be treated the same as others similar in their ability or inability to work that raises the inference of discrimination but then that does not get us to mean it's circular we keep going around but that sounds like the most favored nation clause that young rejects now young so over here young says all sorts of good things for you and over here young says we're not really doing that typical brought  precisely the same way that it was below that employers were allowed to designate certain workers as not similar and courts were buying it because there wasn't evidence on the record that it was enacted with an with an invidious purpose counsel just so i'm clear that would destroy the promise case i think that's right i think that's right your honor i think you can take judicial notice of certain things about why certain policies are enact it that's why i keep them but we can also take judicial notice of the worker what i think it means that you can't discriminate against pregnant women on cost basis but it it can't mean they'd you have to accommodate them regardless of cost when you wouldn't accommodate a non per pregnant person with the same disability what i think your honor and you agree with me i gree that this piece of young the house has been virtually unexplored at all so that's and getting back to judge barnes this question a while back i think we would welcome guidance from this court now what is supposed to happen at that prete stage and i think that where we'll probably end up somewhere down the line is with a test that's akin to undue hardship of course if it's going to break a business to and have to accommodate all pregnant workers that's probably not going to be enough or not going to support a pretext finding but what i'm what i'm asking is that we remember that this is about individual pregnant workers why was this individual not able to be accommodated and i would push back also a bit on the need to show that a policy was adopted with intent to discriminate that was the holding in gilbert that there was an intent to discriminate in the record and that's how we got clause two of the p t a as a young end up saying that the bottom line after all this stuff is enough evidence to raise an inference of intentional discrimination intentional discrimination visa v excluding this pregnant worker not figuring out a way to accommodate her and so for instance i mean we were talking about workability but ok well so you're saying that this has this must to be done at the individual worker stage even though it's clear that there is a policy that is being applied by its own terms we may not have logic for the but it's made but because i mean it's always going to be the case that you can accommodate one worker without breaking the company isn't it but if you really if you read the part of young good talks about cost to mean that that of course there's it's always caused as a practitioner in this area and the people who who brought the case forward can can attest workers are facing is exactly what mr did which is they have a restriction they come forward with a note and we're told we just don't do that so young is intended to at least for employers to be thinking about how can we not just brush people aside that way how can we make accommodations and maybe they accommodate the st three pregnant workers who come for but they can't do the th because they're a small employer the other but if we order them to accommodate her we can't say in two in the next two in la that doesn't work and you know it's great to have a dialogue with the employer but we have to decide the cases and our decision sometimes might fall and we have to be cognizant of the practicalities of ramifications of them on both sides we have your argument and you're welcome for all the extra