Labor and Employment Law

Ca. Labor & Emp't Rev. July 2015, Volume 29, No. 4

United States Supreme Court Creates New Test for Individual Disparate Treatment Cases

By Cara Ching-Senaha and Patricia A. Murphy

Cara Ching-Senaha leads the employment law practice at Moscone Emblidge & Otis LLP. For nearly twenty years, Cara has represented Fortune 100 corporations to closely-held companies across a wide range of industries including retail, manufacturing, high-tech, healthcare (hospitals and biotechnology), hospitality, construction, and food service. She may be reached at: senaha@mosconelaw. com, (415) 362-3599. Patricia Murphy has a law office in San Francisco, where she advises employers regarding federal, state and local employment laws and represents employers in individual, representative and class action cases. She previously led the employment practice group of Moscone Emblidge Sater & Otis LLP and also served as General Counsel for U.S. Wireless Corporation. She may be reached at:, (415) 992-4356.

The United States Supreme Court recently gave birth to a new analytical framework for individual disparate treatment claims brought under the Pregnancy Discrimination Act (PDA).1 Whether and to what extent the Court’s holding applies to non-PDA claims remains to be seen.

Under Young v. United Parcel Service, Inc.,2 a pregnant worker who relies on the burden-shifting framework articulated in McDonnell Douglas Corp. v. Green3 may establish pretext "by providing sufficient evidence that the employer’s policies impose a significant burden on pregnant workers, and that the employer’s ‘legitimate, nondiscriminatory’ 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."4

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