Legal Case Summary

Well, your argument first this morning in case 12, 12, 26 young versus United Parcel Service. Mr. Baggins, us? Thank you, Mr. Chief Justice, and may I please the Court. If Peggy Young had sought an accommodation for a 20-pound lifting restriction that resulted from any number of conditions whether acquired on or off the job, the summary judgment record reflects that UPS would have granted that accommodation. But because Peggy Young's 20-pound lifting restriction resulted from her pregnancy and not from one of those conditions, UPS rejected her request. That we submit as a violation of the second clause of the PDA, which if it means anything must mean that when an employee seeks an accommodation or benefit due to her pregnancy, that she isn't tiled to the same accommodation that her employer would have given her. Well, what you've got to sound as if the only condition that was not accommodated was a lifting restriction because of pregnancy and I didn't understand that to be the case. I mean that's the way you start. You want to say this only pregnancy. Unless I miss something. Well, so I think on the summary judgment record here, Your Honor, the three very broad classes of limitations that UPS accommodates do, at least there's a genuine issue of material fact that they cover the waterfront of everything but pregnancy. But our position is that those three broad classes by themselves, even if there are some conditions out there, that they don't cover. Sorry, I'm sorry. Well, I mean, I think that's a necessary starting point for your case. It seems to me that you started out by really giving a misimpression. Well, Your Honor, I would submit that that's not right. I would submit that on this summary judgment record, UPS acknowledges that they provide accommodations to people with on-the-job injuries. But also the summary, but also the summary judgment record shows that UPS provides accommodations to drivers with off-the-job injuries that result in DOT disqualification. And UPS has not been able to point to a single driver who has a lifting restriction similar to my client Peggy Young's who didn't get accommodated who was not pregnant. So I think- Kagan, so what would your case be if that's except for argument say that there's a category people who are injured off duty who do not get light work assignments? So you pointed to three large categories to do, but let's suppose one category doesn't. Yes. So in that case, our position would be as the plaintext of the statute demands that the employer would be required to treat the pregnant plaintiff the same as those classes of employees who get accommodations to- What's favorite nation's treatment? So it doesn't have to be read that way. It could be read that way, and it could-it could also mean that if you give it to employees generally, you have to give it to a pregnant employees, although there may be special special classes, I think one of the briefs had an example about, you know, if you have your senior employees driven to work when they are unable to drive themselves, you have to do the same for pregnant women. Would you say that that's- No, we would not say that, and we would not say that because our position is that the statutory text requires that employers provide workers who are disabled by pregnancy. The same treatment they would receive if they themselves had a similar- had a condition with a similar effect on the ability to work that had a different source. So what the statute prohibits is discrimination based on the source of the workplace limitation, not based on seniority, not based on position within the company

. What is the purpose? You have a- That's a prior? You know, suppose- I mean, we have a brief as you've seen it from the truck drivers, and they say they don't give many of these benefits to anybody, and suppose they do, though, give a benefit to a truck driver who has driven over a particularly difficult mountain pass, you know, where it got in himself in some danger. Now, the harm or the disability is lifting precisely the same. It's just that the source was different. You see, this came from taking some truck doing something special with it, and again, it's a kind of Mettmost-favored nation problem, but I don't know that source gets you out of it. What do you say about that? Well, so I think as to that, the important point is that is an example of what may be an idiosyncratic decision by an employer to provide an accommodation to a particular employee. I think- Oh, I don't know that it's idiosyncratic. You see, because I don't know all the workplaces, and I can't imagine that employers have all kinds of different rules for different kinds of jobs. And you are saying as long as there's one job in respect to which, let's say, they give them benefits of $1,000 a week when you're hurt on this job, but not on others. And then you have to give them to all pregnant women who hold different jobs. Now, I think the answer to that must be no, but the problem for that in for you is how do you distinguish your situation from that? Right. And I think actually what Justice Scalia's question to me a minute ago actually contains the seeds of the answer to that. So it seems to me, I might agree that an employer that provides a particularly good deal to a single non-pregnant employee doesn't set the- A single? There's a class of people. Right. So- But when you have an employer that provides to a large class to its employees generally, to many of its employees, this accommodated work treatment- I see that that now that sounds the other question I have, and it's the only other one, is that it seemed to me. There is a way, given your theory, it's a quite easy way for you to win. And that would be to bring a disparate impact claim. And that's what I thought disparate impact claims were about. So that you didn't bring the disparate impact claim, and therefore what am I to do? Because I don't know that you want to twist the disparate, you know, intent to claim out of shape when you have such a beautiful vehicle to bring a claim of the kind you just articulated. Well, I think the vehicle to bring the claim of the kind that I articulated is the second clause of the PDA. And the second clause of the PDA says that women affected by pregnancy, childbirth, or related conditions shall be treated the same as other persons not so affected, but similar in their ability or inability to work. But you read that as an accommodation provision, basically, and maybe it is. But let me ask you this question, which goes to the issue of whether the types of accommodations that you would say are required have to meet some reasonableness standard. Let's say there are two categories of employees who have lifting restrictions in their job descriptions. One, consists of people who work alone and they lift all the time. A driver who is driving a truck by herself and has to lift heavy packages all the time would fall into that category. The second category would consist of people who lift more occasionally, and they do it in a place where there will always be lots of other employees in the same class available to do the lifting

. Now, if an accommodation is provided to the workers in the second category, would you say that one must also be provided to workers in the first? No, I don't think so. So our point is precisely that a driver who is pregnant and who has a limitation of related to her pregnancy is entitled to the same accommodation her employer would have given her if she had sought it for a different medical condition with the same effect on the issue. Why doesn't that fit, why doesn't that second class fit within your reading of the statutory tax? Well, so because in our view, the statutory tax by saying, by drawing this distinction between employees affected by pregnancy, childbirth and medical conditions and not so affected, saying employers can't draw that distinction, excuse me. And saying instead, they look only at the ability to work, what it does is it prohibits discrimination based on the source of the disabling condition. It doesn't prohibit discrimination based on different job classifications. If you have a driver, if an employer says no driver who drives alone is going to get an accommodation, whether for an on-the-job injury, a DOT disqualifying injury or a pregnancy, that's fine because it's the same treatment because Justice Alito, we do not read this statute as an independent reasonable accommodation. But why then? I guess I'm not quite understanding why you can get the source classifications into a different category from all other classifications. So explain that. Well, so I mean, I think it goes to the statutory tax. So I mean, the statutory tax says women affected by pregnancy, childbirth, related medical conditions, shall we treat the same, et cetera, as other persons not so affected but similar in their ability to work. What that text is saying is to an employer, don't consider whether this person is affected by pregnancy or not so affected. That's not the basis on which you can compare this employee to other employees. Instead, compare this employee based on ability to work. And remember, this statutory tax was adopted in response to General Electric V. Gilbert, which upheld an employer policy that distinguished based on the source of the disabling condition, treated some kinds of disabling conditions differently from pregnancy related disabled. Well, I think you're reading, you have admitted that other persons can't really be read literally. You have to read things into it. And you would read into it people in the same job classification. But if you can do that, then why can't you also read into it people whose injuries, whose disabilities have the same source? Because once you do that, then the second clause of the PDA doesn't occupy any space. And then Congress should have stopped with the first clause. Congress was doing something with the second clause. It was trying to overturn the Gilbert situation where you had an employer that adopted a policy that, as a formal matter, treated pregnant people the same way it treated non-pregnant people. If you were pregnant, but the reason that you weren't able to work was an off-the-job illness or injury, the General Electric Policy in Gilbert would have given you disability benefits. And what this Court said in the Gilbert case was that's not discrimination. It simply doesn't include coverage for pregnancy, but pregnant women aren't fenced off. What this statutory tax does is it says, no, employers have to treat pregnancy-related conditions as favorably as they treat non-pregnancy-related conditions

. And that's in fact how this Court has read the statute since its very first PDA case. In Newport News, what this Court said was that the Act makes clear that it's discriminatory to treat pregnancy-related conditions less favorably than other medical conditions. And here, UPS with the three very large classes of employees that it provides accommodations to who are not pregnant is treating pregnancy-related conditions less favorably than other So you do assert it's a most favored nation provision. You have to give the benefits that you give to any other class of employees, right? To any other class of employees. I think that it doesn't matter whether that class is enormous or small, right? Well, so I think this is text that obviously requires some degree of interpretation. I think your Honor articulated one way of thinking about it, which is providing it to providing this accommodation or benefit to employees generally. And certainly when an employer provides accommodations or benefits to such large classes of employees who are not pregnant for a demo disability. Does the record show what you have asserted here that the classes that are given special treatment is almost everybody? Well, I think that we have- Is the record show that? I think the record is sufficient to show that. Remember, some adjustment was granted against us. I understand. Yes. So I think the record is sufficient to show that in the following sense. So number one, obviously there's all the on the job injuries which UPS acknowledges they provide accommodations for. Number two, DOT disqualifying conditions that UPS provides a accommodated work for. We have presented examples in the record of individuals who have off the job injuries who are similar in their ability to work as Peggy Young, who have been given a accommodated work. And UPS hasn't pointed to in its briefing here any driver with a similar lifting restriction to Peggy Young, who was not pregnant, who did- You can ruin your case with that argument. And- So, yes. Yes. Assume that. But that isn't going to help me, which I'm rather selfish about. Because my job here is to write what this statute means for a lot of cases and writing the words what it means is if you give a lot of benefits to a lot of employees but not to the pregnant women and you don't give it to some employees and not to the pregnant women. And the employer says, look, the impregnant women are like the few we don't give it to, not to the lot we do give it to, employer, you lose. But by the time I've written that into the U.S. code nobody knows what I'm talking about. You know what I mean? I need to know how to interpret the words such that they would do in your view what you want them to do, which is just what I say

. Yes. And so-and I think the important point is if an employer provides accommodations as a matter of policy to a class of employees who are not pregnant, who are similar in their ability or inability to work to the pregnant plaintiff, and does not provide the same accommodation or benefit to the pregnant plaintiff, it is violating the plaintext of the statute which says that women affected by pregnant's most favored nation. So you're coming down to most favored countries? So-and I think-and that makes sense. And that's easy for my-and I think you're all ready to- Describe, you can write that down as a penny. But unfortunately it takes out of what you just said the fact that you give them to a lot of employees is you could have a most favored nation that was two employees, including those who have only worked there for 40 years. Well, it's a huge seniority. So those are the words that I'm- I understand. And I understand. And that's why I think this may be an easier case than what you're saying. They simply were saying if I understand it is-it's okay to differentiate on the basis of anything but source, which means whether it's worker non-work related. That's-you're reading out of the-it's just state of history, the fact that Congress repeatedly said we're not forcing employers to give benefits for non-work related injuries. But we're going to write it so they have to anyway. So-so I don't think there's any statement in the legislative history that says we're not forcing employers to give benefits for non-work related injuries. What-there-there are three statements in the legislative history that-that- Respondent draws a negative inference from. I'm so relieved. Right. So the-the-the-the-respondent draws a negative inference from to say, obviously Congress didn't mean to do that, but to return to Justice Scalia's response there. I mean, the point is the text contains no such limitation. And on the job off the job distinctions are-we're certainly known to Congress at the time it adopted-the-adopted-the-adopted-the statute. In fact, General Electric for Gilbert involved a policy that contained an on-the-job off-the-job distinction, although the flip side of the one in this case, if Congress meant to say that employers have an exception from the general Shelby tree of the same requirement for an on-the-job off-the-job distinction, it could have said so. And if I might reserve the balance of my time. Certainly. Thank you. Okay. Now, at least we'll hear. General Burrally? Mr

. Chief Justice and may please the Court. The point of the Pregnancy Discrimination Act is to reduce the number of women who are driven from the workforce, or forced to go months without an income as a result of becoming pregnant. The second clause of the PDA advances that interest in a narrow but important way. I say the second clause is narrow because it is not a freestanding accommodation requirement like the religious provision of Title VII or like the ADA. And I say it is narrow because there is only one thing that an employer can't do when it affords benefits or accommodations. It can't draw distinctions that treat Pregnancy-related medical conditions worse than other conditions with comparable effects on ability to work. And it wasn't the other one. The government took in the U.S. Postal Service Policy. We are told that the government defended a policy that is for all intents and purposes the same as United Partial Service. And more than that, as some briefs called Petitionist Position Friveless can try, that was the government's position, so will you explain how the government, I suppose to this day because the Postal Service still retains as far as we know the exclusion of pregnant women. Of course, Justice Ginsburg, it is correct that the Department of Justice defended the Postal Service practices against charges like those that Ms. Young makes in this case. That's correct. We acknowledge that in footnote 2 of our brief to this Court. Since then, however, the EEOC has issued guidance, and that's a very significant fact. Congress has charged the EEOC with authority to interpret the statute and with authority to enforce it. I thought we felt that we don't give difference to the EEOC. You don't give Chevron deference to the EEOC, but the government has interests. Oh, come on. So we give what, what do you call the other kind of difference? I mean, gee, you give that to me, even when I'm in dissent. I mean, that just means, you know, treated for what it's worth. The EEOC sets the enforcement policy for the federal sector with respect to this issue. That's a significant fact. We took it into consideration in deciding what the position of the United States should be

. Would your position here be the same if the 2014 guideline had not been adopted? We didn't take that position before the 2014 guideline had been adopted, Justice Kennedy. And I just don't know how to answer that question because we took the position in light of the guidance adopted in 2014, which we do consider to be significant. And we do have to weigh our interests as enforcer of the law as well as as employer. We did so on a considered basis and we came to the judgment that we thought was the correct judgment about the meaning of the statute. We don't give you any more difference than we give the EEOC, though, right? Well, with respect to this, I do think that the courts got to decide what the best reading of the statute is. With the best reading of the statute. Regardless who would you, that's correct. And if I could turn to that, I think, and I hopefully in doing so, answer your question, Justice Alito, and also yours, Justice Kagan. Here's why we think the statutory tax, and if I may be, it might help if I restate it, what I think the rule is, and then explain where the textual basis comes from. We think the one thing an employer can't do as a result of the second clause is draw distinctions that treat pregnancy-related medical conditions worse than other conditions with comparable effects on ability to work. It's that single thing. And so, seniority, full-time work, different job classifications, all of those things and we permissible distinctions for an employer to make the differentiated among who gets benefits. Now, as for the textual basis, I'm looking at the statute here which is we've got a page 12 and 13 of our brief and it's also in the last page of the appendix to the petition. It says that what it says is that among the class of people who are comparable in their ability to work, in other words, similar in their ability or inability to work, as a statute says, women with a pregnancy-related medical condition, in other words, women affected by pregnancy childbirth or related medical condition, as a statute says, can't be treated worse on the basis of their condition. That's what we think treated the same means in the statute than other workers with non-pregnancy related medical conditions that impose comparable limitations. Those are other persons not so effective. Would you give me your interpolation again? You all, are you all to the phrase the same? And the words you added were on the basis of their condition. And the reason we think that that's the sensible and best reading of the statutory text is because this is focused on the condition and not the person who, but you start you at the very beginning, you listed three things that you said were reasonable distinctions because the word I'd like you to focus on is other workers and problem is which other workers, because it is easy to construct type of theoretical cases where the employer treats some other workers the same as the statute and doesn't others. And which distinctions are reasonable and which ones are not and how do we tell? I'd like to make two points in response, Justice Breyer. The first about the nature of Title VII claim and the second about the nature of this kind of an anti-discrimination provision. With respect to the first, I think it's helpful to differentiate between a direct claim of discrimination and disparate treatment versus a claim proven through the MacDonald Douglas framework. Now we think in order to prove a direct claim without going through the MacDonald Douglas burden shifting analysis, what you've got to show is that an employer offers a accommodation to a significant class of employees and that that accommodation fails to test. I described earlier. It's got to be a significant class. And we think that's this case. We think that's going to be most cases

. But in the kinds of examples that you're on, I identified the one guy driving across the mountain. For example, I think you'd have two issues there. First, when it's one person, you're not going to be able to make a direct case. You go through MacDonald Douglas and the employer may well have an explanation for that accommodation that would take it outside of the source of the disability limitation and mean there's no liability. And then with respect to that example, there's a second point to be made, I think, which is that that person who has to drive the particularly dangerous route, for example, may just well be in a different job category and therefore not similar in ability or in ability to work. I would have thought of those types of cases that present the starkest example of discrimination on the basis of pregnancy. The idiosyncratic one. Oh, well, he's doing this, yes, but he's doing that. And then the pregnant woman comes in and says, ah, you know, that's not the same thing. I thought maybe it's the sort of the isolated examples that would be particularly glaring in their discriminatory. Well, I'm not saying that you've just as I guess what I would say about that is that you could certainly bring a MacDonald Douglas claim against an individual idiosyncratic difference. But then if the employer can show that the accommodation was granted to one not on the basis of a criterion that this sentence in the PDA would forbid, then the employer than the combination is fine, there's no violation. And to get back to the point, that's the, that's, I use the idiosyncratic example, not because I'm interested in it, because I think it illustrates something that isn't idiosyncratic. And what I use it to illustrate is the fact that as here, employers will have classes of people and the classes may be based on all kinds of different things. But this is a case where there are classes. And some get the benefits equivalent to the pregnancy. And some don't. And how are we supposed to tell which are the criteria that are consistent with the statute and which are not? That's what I found as the difficult question in the case. And that's why I ask it using the idiosyncratic simply to illustrate what I think is the problem. Yes, of course. Let me get to the second point I wanted to make in response to your question, and then I'll try after I do that to give you a very specific response to what you just asked me. The second point is, you know, it is true that some classes are going to be in and some classes are going to be out, but that's how discrimination law operates. If an employer is discriminating against women in promotions, the fact that an employer is also discriminating against overweight men in promotions doesn't make the discrimination against women any less actionable because it just reflects the choice Congress made about whom to protect and whom not to protect. And here the choice Congress made about whom to protect and whom not to protect is the choice to protect women who have condition, pregnancy related, medical conditions. That's the congressional judgment here. They didn't choose to protect everybody who gets injured off the job

. They chose to protect those with pregnancy related. So if the employer has a rule, we will, if you have a disability required outside of employment, give you benefits for one month, and it applies that same policy to the pregnant woman. Is that a violation of the statute? No, I think the pregnant woman would be entitled to the one month, but nothing more than that. Not very much, but nothing else. Correct. That's correct. Why isn't that discrimination in the basement? Well, because the statute requires that people be treated the same. And so she would be, the pregnant woman would be treated the same under those circumstances. It doesn't work well. But not if there was a separate category of people who were entitled to benefits for more than one month. Well, the question would be whether those benefits, whether the distinction, whether the disentitlement of the pregnant employee was based on the source of her condition, namely pregnancy, if it's based on something else like seniority or full-time status, then of course, especially. I answer my question, which was, do you mean source means on the job and off the job? Is that what this case revolves around? Because I don't know what source means. Briefly? Yes, Mr. Chief Justice, briefly. So I think that on the job versus off the job, that distinction goes to inevitably, goes to the source of the impairment, and of course, pregnancy will never qualify under that standard. But it's in this case is not just about on the job versus off the job, is about on the job versus off the job plus the DOT certification category, which can include people who lose their DOT certification and can't drive as a result of physical conditions other than the pregnancy that prevent them from doing the job they have to do, which could include lifting, and the DOT manual, which the petitioner's site said, page 6 and 7 says exactly that. Thank you. Thank you, General. Is Haligan? Mr. Chief Justice, and may I please the Court? Justice Breyer, you are exactly correct. Had petitioner believed that the policy that UPS applied, which was to provide accommodations to employees who are injured on the job, but not to provide accommodations to any employees who sustained a condition incurred off the job, she could have brought a disparate impact claim. We believe she would not have succeeded, but she could have and she did not. She attempted to bring one late in the day. It was dismissed by the District Court because it had not been exhausted. When Miss Haligan, can we talk about the claim that she did bring? Yes. So your reading of the statute basically makes everything after the semicolon completely superfluous, and I think you would agree with that

. Absolutely not, Your Honor. The reading that we propose is very straightforward. What Congress said in the Second Clause, the key words are the same as other persons. What other means is simply distinct from whatever is mentioned first. So employers have to treat pregnant employees. The same as some distinct group of non-pregnant employees that are similar in their ability or inability to work, and that's exactly what UPS has probably done. But that is what the first provision does. When it says pregnancy is the same as sex, when we say because of sex, we also say because of pregnancy, all of that would be taken care of by that clause. This Court explained in Newport News as well as in CalFed that the function of the second clause is to explain how Title VII principles apply to pregnancy, and the reason that they had to do that was in order to repudiate the law. So you are saying it's not doing anything new. It's only explaining the old stuff. And okay, tell me why that is. I'm not saying that, Your Honor. What I'm saying is that in a pregnancy discrimination case, instead of comparing women with men as you would in a typical sex discrimination case, because what the first clause does is bold pregnancy onto sex discrimination. And so if you compare women and men in a pregnancy discrimination case where you have a policy that facially discriminates against pregnancy, you will nonetheless conclude that there's not sex discrimination because there will be women who are pregnant in the disfavored group, but there will also be women who are not pregnant in the favored group along with men. I think again that that's not necessary because all of the inquiry would be is were you discriminated against because you were pregnant. Yes, I was. No, I wasn't. You don't need any of this other stuff about what the comparator class is. And in fact, you're creating a kind of double redundancy. It's everything past the semicolon is redundant, but then moreover, the key words here, which is other persons not so affected, but similar in their ability or inability to work, that becomes redundant even within the redundancy. I think to respond to the last point first and then the first, what petitioners interpretation and the government's interpretation would do would actually be to rewrite those words in one of two ways. Initially, petitioners seem to be suggesting that if a plaintiff could identify any other single employee who was accommodated, that the pregnant employee would be entitled to the same accommodation. What that would mean is the statute would have to read the same as any other person. It does not. Now, petitioner and the government are both suggesting that the only restriction that this bar is a restriction based on source, any other restriction, rank, seniority, status, outside legal obligations are acceptable, but it doesn't contain any of those words either

. Not source, not source. So that that's seen as a, I mean, that is the question that this language raises, right, which is why source, but why not a seniority limitation or something like that? So can I give you an alternative way to understand what the statute is doing, which is that this, what we ought to be thinking about is methanol Douglas. In other words, the, the, the, this provides the comparator. It's, it says an employee can find a class of people who are being given an accommodation, notwithstanding that those people are similarly situated with respect to work, and employee points to that class. And then in a typical MacDonald Douglas fashion, the employer comes back and says, no, there's a good reason why I'm treating that class differently that has nothing to do with pregnancy. It has something to do with, I always treat more senior employees differently, or something like that. And at that point, if the, if the employer makes his case, the employee gets to come back and say, no, that's pretext. In just the way we do with every other discrimination case, and that's what this is all about. It's identifying the comparator that the employee has to identify in the first instance in order to shift the burden to the government to come back with a reason. I think the second clause is highly relevant to the question of comparators, but not in the way that you're suggesting. What the second clause does, as this Court has laid out in Newport News and in CalFed, is to explain that when you are making those comparisons that you don't look at women and men, which is what you might do as this Court did in Gilbert, because it's sex discrimination that you are actually trying to find a choice. But I mean, instead of talking in the abstract, do you give me any example of a case that a plaintiff would lose under the first clause that puts pregnancy together with sex? I'm not sure that you could, but that wasn't the function of the second clause. And particularly, when you are saying second clause adds nothing, even though CalFed said, and there is one clause, because of sex, includes pregnancy, and something in addition, but you're saying it's not really in addition. I think that grammatical connector is very important in understanding how the two clauses relate for the following reason. Petitioner's construction would read the first clause out of the statute entirely. The words in the first clause are because of, and this Court has consistently understood those words across protected traits to require that discrimination in a, in an intentional discrimination case, that you have discrimination that is actually motivated by the protected trait. If the second clause does the work petitioner suggest, even if you could find the word source in that, which it's not in the text, it would mean that you don't need to show that the protected trait, pregnancy, actually motivated the adverse treatment. So, his construction would read that out of the statute entirely. Kagan, what's wrong with my middle ground? It's not that Mr. Baggins does on the general's ground, because it allows the employer to come back and say, I have a legitimate policy based on seniority, or even I have a legitimate policy based on the source of the injury. But it does put that as a question, whenever an employee is able to point to a class of people who are granted the disability accommodation, who aren't pregnant. Kagan, I just don't think it has any anchor in the words of the statute itself. The words are as standard. It basically gives a function for what the key words of the statute are other persons not so affected, but similar in their ability and ability to work. What is that doing? What it does is it points to the comparator that sets off the MacDonald Douglas test, that forces the employer to come back and give a reason for why it is that this ought not to be taken as discrimination against pregnancy. Kagan, I think that this Court has been clear that the function of the second clause is to repudiate that logic which equates when you look at women and men and you have a pregnancy, a policy that discriminates on the basis of pregnancy. So you say that's not sex discrimination. What that would also do is to collapse the distinction between dispertreatment and dispert intent. This Court has been clear that that is an absolute line. It said so in Raytheon, Congress tracked that distinction in the 1991 Civil Rights Act. And Justice Stevens and his dissent in Gilbert itself, which this Court said it was codifying when it enacted the pregnancy discrimination. The language after the semicolon were not there, would the language before the semicolon have effectively overruled Gilbert? It would have overruled Gilbert by bolting pregnancy on, but Congress would have used a different result in Gilbert. So, opposed the employer has a policy of providing certain benefits for employees who have an injury or a disease, but not pregnancy. You didn't have the language after the semicolon, would the language before the semicolon have required the employer to treat pregnant women the same as those who have an illness or an injury? I'm not sure that it would have, and I'm also not sure that it would have precluded the Court from using the same logic that was at play in Gilbert itself. And that's why those words are there. So, there's a reason for the language after the semicolon, that you have to go further in order to produce a different result in Gilbert. And if that's correct, could you explain what you think the language after the semicolon means? I think the language after the semicolon instructs that, that when you look at a policy that facially discriminates on the basis of pregnancy, what you would typically do in a sex discrimination case is to look at how women and men are treated. And if they are treated differently, you would conclude that there is sex discrimination. What this clause instructs is that when you look at a policy that discriminates on the basis of pregnancy, rather than looking at women and men, which will lead you to the conclusion that there is no sex discrimination, because all the non-pregnant women are treated differently. Yes, but the first clause does. It says, pregnancy affects period. I don't, and when you will have already said that you don't think that the second clause does any practical work, that is, you can't conceive of a case where a plaintive would lose under clause one and win under clause one. Well, to be clear, Your Honor, the reason the second clause is there is to avoid a case in which a court uses the same reasoning and reaches a different result. This court also attached special significance to the second clause in Johnson Controls. It said that the second clause provides a BFOQ for pregnancy specifically. And so it does that work as well. What Petitioner suggests is that the second clause somehow permits any distinction except on the job versus off the job. That's a distinction that is wrongstanding and has a very good reason. Now, if you don't know where that, the, I'd like just to go back on this very point to what Justice Kagan said. Now, the McDonald Douglas test, I think, should come in somewhere. That is the, the, the, the, the, the, the, the, the, the, the woman shows that I'm pregnant, I couldn't lift, I wasn't paid anything, and, uh, other people who had comparable inability's were paid. And so we get to, was I qualified like they are? And now that a distinction is being made, the employer says, no, you're not, because you didn't drive over them out in pass or no, you're not, because you do out it off the job

. So you say that's not sex discrimination. What that would also do is to collapse the distinction between dispertreatment and dispert intent. This Court has been clear that that is an absolute line. It said so in Raytheon, Congress tracked that distinction in the 1991 Civil Rights Act. And Justice Stevens and his dissent in Gilbert itself, which this Court said it was codifying when it enacted the pregnancy discrimination. The language after the semicolon were not there, would the language before the semicolon have effectively overruled Gilbert? It would have overruled Gilbert by bolting pregnancy on, but Congress would have used a different result in Gilbert. So, opposed the employer has a policy of providing certain benefits for employees who have an injury or a disease, but not pregnancy. You didn't have the language after the semicolon, would the language before the semicolon have required the employer to treat pregnant women the same as those who have an illness or an injury? I'm not sure that it would have, and I'm also not sure that it would have precluded the Court from using the same logic that was at play in Gilbert itself. And that's why those words are there. So, there's a reason for the language after the semicolon, that you have to go further in order to produce a different result in Gilbert. And if that's correct, could you explain what you think the language after the semicolon means? I think the language after the semicolon instructs that, that when you look at a policy that facially discriminates on the basis of pregnancy, what you would typically do in a sex discrimination case is to look at how women and men are treated. And if they are treated differently, you would conclude that there is sex discrimination. What this clause instructs is that when you look at a policy that discriminates on the basis of pregnancy, rather than looking at women and men, which will lead you to the conclusion that there is no sex discrimination, because all the non-pregnant women are treated differently. Yes, but the first clause does. It says, pregnancy affects period. I don't, and when you will have already said that you don't think that the second clause does any practical work, that is, you can't conceive of a case where a plaintive would lose under clause one and win under clause one. Well, to be clear, Your Honor, the reason the second clause is there is to avoid a case in which a court uses the same reasoning and reaches a different result. This court also attached special significance to the second clause in Johnson Controls. It said that the second clause provides a BFOQ for pregnancy specifically. And so it does that work as well. What Petitioner suggests is that the second clause somehow permits any distinction except on the job versus off the job. That's a distinction that is wrongstanding and has a very good reason. Now, if you don't know where that, the, I'd like just to go back on this very point to what Justice Kagan said. Now, the McDonald Douglas test, I think, should come in somewhere. That is the, the, the, the, the, the, the, the, the, the, the woman shows that I'm pregnant, I couldn't lift, I wasn't paid anything, and, uh, other people who had comparable inability's were paid. And so we get to, was I qualified like they are? And now that a distinction is being made, the employer says, no, you're not, because you didn't drive over them out in pass or no, you're not, because you do out it off the job. And then we have to decide, is that a pretext? Is it legitimate? And where they're giving it to everybody else and they're very few, it doesn't sound too legitimate. But, but, that test must come in. It does. And so how, how does it, and does it matter if we put it under the first so-called, whatever, you know, intentional as opposed to disparate impact, will we muck up the law where we to say it goes in that part, rather than the other part or both parts? Well, I, I think if I can, this Court has been clear that McDonald Douglas provides a mechanism for providing indirect evidence of disparate treatment, of intentional discrimination. So it's distinct, I think, from a disparate impact case, where, as here, you have a facially neutral policy, a policy that says, on the job gets accommodation when they can't perform the essential functions of their job. Anyone with an injury or condition that's sustained off the job doesn't. When you have a facially neutral policy like that, you can bring a disparate impact claim, Peggy Young, and that. But why not if it goes under disparate treatment? Why not? Because, of course, the employer will always have a facially neutral policy. It just turns out that this facially neutral policy happens to hit the pregnant women and four other people. And I mean, that's the kind of thing that we're trying to stop in this statute. So why not bring it in there in the disparate treatment part, as you say? Kagan, Q2 answers, Your Honor. First of all, I think that distinction between a disparate impact claim where you're looking at the adverse effects on a certain class of employees, but you have a facially neutral policy has been quite as distinct from a policy that discriminates on its face, either directly or indirectly. That's how it is. Well, as to. Suppose that it's exactly what Justice Breyer is talking about. Suppose you had a policy that said, we're going to provide accommodations for anybody with a non-occupational sickness and accident. Very similar to Gilbert, but without all the other facts of Gilbert. We're just, it's a facial policy. We're going to provide accommodations. But, of course, pregnancy is not a non-occupational sickness and accident. So as a result of this facially neutral policy, pregnant women will not get accommodations. Now, as I understand what you are saying, it's, that's perfectly fine. If a policy distinguishes between occupational injuries and non-occupational injuries, you're not. Yes, this is non-occupational sickness and accident. And that would be acceptable. And what a plaintiff who believed that none the last there was intentional discrimination of foot

. And then we have to decide, is that a pretext? Is it legitimate? And where they're giving it to everybody else and they're very few, it doesn't sound too legitimate. But, but, that test must come in. It does. And so how, how does it, and does it matter if we put it under the first so-called, whatever, you know, intentional as opposed to disparate impact, will we muck up the law where we to say it goes in that part, rather than the other part or both parts? Well, I, I think if I can, this Court has been clear that McDonald Douglas provides a mechanism for providing indirect evidence of disparate treatment, of intentional discrimination. So it's distinct, I think, from a disparate impact case, where, as here, you have a facially neutral policy, a policy that says, on the job gets accommodation when they can't perform the essential functions of their job. Anyone with an injury or condition that's sustained off the job doesn't. When you have a facially neutral policy like that, you can bring a disparate impact claim, Peggy Young, and that. But why not if it goes under disparate treatment? Why not? Because, of course, the employer will always have a facially neutral policy. It just turns out that this facially neutral policy happens to hit the pregnant women and four other people. And I mean, that's the kind of thing that we're trying to stop in this statute. So why not bring it in there in the disparate treatment part, as you say? Kagan, Q2 answers, Your Honor. First of all, I think that distinction between a disparate impact claim where you're looking at the adverse effects on a certain class of employees, but you have a facially neutral policy has been quite as distinct from a policy that discriminates on its face, either directly or indirectly. That's how it is. Well, as to. Suppose that it's exactly what Justice Breyer is talking about. Suppose you had a policy that said, we're going to provide accommodations for anybody with a non-occupational sickness and accident. Very similar to Gilbert, but without all the other facts of Gilbert. We're just, it's a facial policy. We're going to provide accommodations. But, of course, pregnancy is not a non-occupational sickness and accident. So as a result of this facially neutral policy, pregnant women will not get accommodations. Now, as I understand what you are saying, it's, that's perfectly fine. If a policy distinguishes between occupational injuries and non-occupational injuries, you're not. Yes, this is non-occupational sickness and accident. And that would be acceptable. And what a plaintiff who believed that none the last there was intentional discrimination of foot. What they would do is they would, under McDonald Douglas, they would, first of all, attempt to make a prima facie case by showing that other employees who were similarly situated were being treated differently. The comparators that the petitioner points to here are not valid because they're not similarly situated. You're talking about your own hearing. You're talking about your own hearing. And radically from what the fourth Circuit Viewer and the fourth Circuit did say, right up front, that this clause standing alone is unambiguous if a group of employees just the benefit, if other employees just the benefit, so much pregnant women. Back the fourth Circuit saying, yeah, that's what it says, just standing alone, back because it would really lead to untoward results for differential treatment, we're not going to give it that meaning. Well, the first Circuit realized that the two clauses have to be read together. And in fact, to read the second clause as petitioners suggest, just reads the first clause that have existed. And it's just as taken for back to your question, what an employee could do in that circumstance is to say the policy doesn't treat similarly situated employees the same as me. It treats me worse. The comparators here were not at all congruished. The first set of comparators were individuals who were accommodated under the ADA. The government realizes that they're not similar. That's where we disagree, because what this tells you is it tells you what the comparators are. The comparators are any class you can come up with who is as the same disability and isn't pregnant. And then the employer can come back and say, no, we had a good reason to treat that class of employees differently. And if you buy that with respect to the Gilbert distinction, I don't understand why you wouldn't buy it with respect to any other classification. Because all the second clauses telling you, and Congress was clear, and this Court was clear that the PDA both clauses in its entirety were not intended to in any way depart from traditional Title VII principles. It was simply to correct the fact that pregnancy could be sex discrimination. But we absolutely know that what Gilbert was said was that kind of policy was legitimate, and that Congress came back and said, no, that kind of policy is illegitimate. It said two things. It said it's illegitimate in the first clause, and it said you cannot when you are trying to ascertain if there's sex discrimination with a pregnancy policy break it down into women and men, because you won't get the result Congress wants. Congress says when it's socially discriminatory on the basis of pregnancy, that sex discrimination, so the comparators do have to be different. You're correct. It's pregnant employees and nonpringent employees. And if I, as I understand the answer to my question and tell me if I'm wrong, is you're saying with respect to a facially neutral policy as to nonoccupational sickness and health

. What they would do is they would, under McDonald Douglas, they would, first of all, attempt to make a prima facie case by showing that other employees who were similarly situated were being treated differently. The comparators that the petitioner points to here are not valid because they're not similarly situated. You're talking about your own hearing. You're talking about your own hearing. And radically from what the fourth Circuit Viewer and the fourth Circuit did say, right up front, that this clause standing alone is unambiguous if a group of employees just the benefit, if other employees just the benefit, so much pregnant women. Back the fourth Circuit saying, yeah, that's what it says, just standing alone, back because it would really lead to untoward results for differential treatment, we're not going to give it that meaning. Well, the first Circuit realized that the two clauses have to be read together. And in fact, to read the second clause as petitioners suggest, just reads the first clause that have existed. And it's just as taken for back to your question, what an employee could do in that circumstance is to say the policy doesn't treat similarly situated employees the same as me. It treats me worse. The comparators here were not at all congruished. The first set of comparators were individuals who were accommodated under the ADA. The government realizes that they're not similar. That's where we disagree, because what this tells you is it tells you what the comparators are. The comparators are any class you can come up with who is as the same disability and isn't pregnant. And then the employer can come back and say, no, we had a good reason to treat that class of employees differently. And if you buy that with respect to the Gilbert distinction, I don't understand why you wouldn't buy it with respect to any other classification. Because all the second clauses telling you, and Congress was clear, and this Court was clear that the PDA both clauses in its entirety were not intended to in any way depart from traditional Title VII principles. It was simply to correct the fact that pregnancy could be sex discrimination. But we absolutely know that what Gilbert was said was that kind of policy was legitimate, and that Congress came back and said, no, that kind of policy is illegitimate. It said two things. It said it's illegitimate in the first clause, and it said you cannot when you are trying to ascertain if there's sex discrimination with a pregnancy policy break it down into women and men, because you won't get the result Congress wants. Congress says when it's socially discriminatory on the basis of pregnancy, that sex discrimination, so the comparators do have to be different. You're correct. It's pregnant employees and nonpringent employees. And if I, as I understand the answer to my question and tell me if I'm wrong, is you're saying with respect to a facially neutral policy as to nonoccupational sickness and health. Yes. The do you think that that is illegal under the PDA? No, it's legal under the PDA. A policy that distinguishes between occupational and nonoccupational injuries and is evenly applied is absolutely permissible under the PDA. Even if it's exactly the policy that's in Gilbert, and you're saying that's filed, the policy in Gilbert singled out pregnancy for his favor. There were lots of other things except for pregnancy that got excluded in Gilbert. If a man had a vasectomy, it got excluded in Gilbert. If somebody got into a bar fight, it got excluded under the policy in Gilbert. If a person had cosmetic surgery, it got excluded under the policy in Gilbert. Gilbert was about much more than singling out. This Court and Congress clearly described the policy in Gilbert as singling up pregnancy. And that's why Congress enacted the PDA because it enacted it to overturn Gilbert. Everybody. It's called an absrack theory, but the result in Gilbert and as Justice Kagan pointed out, Gilbert was a case where you could point to a lot of other people who were not getting this benefit. One of the results that Petitioner and the government suggests, which is instead to say that you can have any distinction you want, and it's permissible under the PDA, except on the job versus off the job, is far more contorted. That's a distinction that sounds in workers' compensation. Is it true, essentially? I mean, you said that a balanced position is most favored nation. When you're as least favored nation. It's not least favored nation. The question is, is there another distinct group of employees who are treated the same as the Petitioner? And here there are. And this is where the fact that Mr. Baggins' House has told us that there is not in this record a single instance of anyone who needed a lifting dispensation, who didn't get it, except for pregnant people. And if that's the case, in fact, then you lose, don't you? Well, I would like to address that because I think that's a real mischaracterization of the record in a couple of ways. First of all, the District Court held squarely that the effort by plaintiff to characterize this policy as no-like duty for pregnancy was wrong. What the District Court said, this is at page 59a, is that the actual policy was on the job ADA accommodations and the adjudication. But we know, in fact, this is an allegation that, in fact, no one who wanted a dispensation didn't get it, except pregnant women. That is also contradicted, Your Honor

. Yes. The do you think that that is illegal under the PDA? No, it's legal under the PDA. A policy that distinguishes between occupational and nonoccupational injuries and is evenly applied is absolutely permissible under the PDA. Even if it's exactly the policy that's in Gilbert, and you're saying that's filed, the policy in Gilbert singled out pregnancy for his favor. There were lots of other things except for pregnancy that got excluded in Gilbert. If a man had a vasectomy, it got excluded in Gilbert. If somebody got into a bar fight, it got excluded under the policy in Gilbert. If a person had cosmetic surgery, it got excluded under the policy in Gilbert. Gilbert was about much more than singling out. This Court and Congress clearly described the policy in Gilbert as singling up pregnancy. And that's why Congress enacted the PDA because it enacted it to overturn Gilbert. Everybody. It's called an absrack theory, but the result in Gilbert and as Justice Kagan pointed out, Gilbert was a case where you could point to a lot of other people who were not getting this benefit. One of the results that Petitioner and the government suggests, which is instead to say that you can have any distinction you want, and it's permissible under the PDA, except on the job versus off the job, is far more contorted. That's a distinction that sounds in workers' compensation. Is it true, essentially? I mean, you said that a balanced position is most favored nation. When you're as least favored nation. It's not least favored nation. The question is, is there another distinct group of employees who are treated the same as the Petitioner? And here there are. And this is where the fact that Mr. Baggins' House has told us that there is not in this record a single instance of anyone who needed a lifting dispensation, who didn't get it, except for pregnant people. And if that's the case, in fact, then you lose, don't you? Well, I would like to address that because I think that's a real mischaracterization of the record in a couple of ways. First of all, the District Court held squarely that the effort by plaintiff to characterize this policy as no-like duty for pregnancy was wrong. What the District Court said, this is at page 59a, is that the actual policy was on the job ADA accommodations and the adjudication. But we know, in fact, this is an allegation that, in fact, no one who wanted a dispensation didn't get it, except pregnant women. That is also contradicted, Your Honor. But we have, we're on the summary judgment stage, so we don't know what the facts are. No, but we have to look at the uncontroverted evidence. There's uncontroverted testimony in the record, and I would point you to Ms. Martin and Mr. Brian's testimony that there were many employees who sustained off-the-job injuries, and the District Court held specifically that no-like duty was given to any employees, male or female, with any medical conditions not related to work. Pregnancy included at page 56a. It was an example then. Is there an employee who asked for dispensation because of a medical condition that restricted her ability to lift to any single employee that wrote that, who was said, sorry, you don't get it because your injury was off duty? There's not a name provided in the record because one was not elicited by the petitioner whose burden it was in building a prenatal phase. She case, but the record evidence is undisputed that there were many employees who sustained off-the-job injuries, and it's unsurprising. UPS is in the business of delivering a crash. They suffered off-the-job injuries, but we don't know if they asked for a dispensation because it was off-the-job injury required that they limit the weight that they took there. The District Court held that UPS's policy is that employees who are unable to perform the essential functions of their job would be required to take leave if their inability stand from something off the job. And in a business that involves moving 70-pound packages around all day long, it is certainly the case that as the uncontroverted testimony established, there were many employees who sustained an off-the-job injury that prevented them from doing that job. I assume that you disagree with the petitioner's proposition that when you take these three classes, namely off-the-job, I'm sorry, on-the-job injuries, ADA injuries, and the third most traffic certificate. Yeah, getting disapproved as drivers by dot, there's almost nothing left. That's what the petitioner said. We absolutely disagree with that, and there is nothing in the record which suggests that. It is completely without citation or support, and it's completely contraverted by the testimony that there were many employees who did sustain an off-the-job injury. So there were three narratives, exceptions, absolutely. The three that you identified, but every employee as the District Court held that sustained an off-the-job injury pulled their back, turned their knee, whatever it is, couldn't come into work. We're not accommodated with the kind of light duty that Ms. Mizzou said. Well, so why shouldn't there be a trial on that, or further proceedings? It turns out that they're right, that there were four people who weren't pregnant, and that's all who didn't get the benefits. Ma, that's pretty strong evidence that the employer is discriminating. Yes. If there were 400,000 people who got the thing off the job, and there were only like 19 people on the job who got the benefit, well, then you have a better case

. But we have, we're on the summary judgment stage, so we don't know what the facts are. No, but we have to look at the uncontroverted evidence. There's uncontroverted testimony in the record, and I would point you to Ms. Martin and Mr. Brian's testimony that there were many employees who sustained off-the-job injuries, and the District Court held specifically that no-like duty was given to any employees, male or female, with any medical conditions not related to work. Pregnancy included at page 56a. It was an example then. Is there an employee who asked for dispensation because of a medical condition that restricted her ability to lift to any single employee that wrote that, who was said, sorry, you don't get it because your injury was off duty? There's not a name provided in the record because one was not elicited by the petitioner whose burden it was in building a prenatal phase. She case, but the record evidence is undisputed that there were many employees who sustained off-the-job injuries, and it's unsurprising. UPS is in the business of delivering a crash. They suffered off-the-job injuries, but we don't know if they asked for a dispensation because it was off-the-job injury required that they limit the weight that they took there. The District Court held that UPS's policy is that employees who are unable to perform the essential functions of their job would be required to take leave if their inability stand from something off the job. And in a business that involves moving 70-pound packages around all day long, it is certainly the case that as the uncontroverted testimony established, there were many employees who sustained an off-the-job injury that prevented them from doing that job. I assume that you disagree with the petitioner's proposition that when you take these three classes, namely off-the-job, I'm sorry, on-the-job injuries, ADA injuries, and the third most traffic certificate. Yeah, getting disapproved as drivers by dot, there's almost nothing left. That's what the petitioner said. We absolutely disagree with that, and there is nothing in the record which suggests that. It is completely without citation or support, and it's completely contraverted by the testimony that there were many employees who did sustain an off-the-job injury. So there were three narratives, exceptions, absolutely. The three that you identified, but every employee as the District Court held that sustained an off-the-job injury pulled their back, turned their knee, whatever it is, couldn't come into work. We're not accommodated with the kind of light duty that Ms. Mizzou said. Well, so why shouldn't there be a trial on that, or further proceedings? It turns out that they're right, that there were four people who weren't pregnant, and that's all who didn't get the benefits. Ma, that's pretty strong evidence that the employer is discriminating. Yes. If there were 400,000 people who got the thing off the job, and there were only like 19 people on the job who got the benefit, well, then you have a better case. So why don't we have to look at the facts? First of all, Your Honor, that would be relevant to a disparate impact claim which the petitioner did not bring. Secondly, there was extensive discovery in this case. There was summary judgment granted with uncontroverted evidence that establishes exactly the opposite of what you're suggesting. So there's no need to do that. This is a very straightforward case, and but for the effort by the petitioner to bring the record back into play at this late date, none of this would be something that you would ever consider. Is there really a dispute about this? Maybe Petitioner's Council could address it in rebuttal, but is there really a dispute that if a UPS driver fell off his altering vehicle on the weekend and was unable to lift that person would not be given like duty? Is that really disputed? There's no dispute at all. In the district court made a square finding exactly to that effect at page 56a and page 30, 35a. I would also direct you in our red brief to page 5 where we set forth Ms. Martin's testimony that she never authorized an accommodation for anyone who was injured off the job. So that's there as well. I'd like to turn briefly if I can to the question of the EEOC guidance that the solicitor general. But there are individuals who are injured off the job who lose their DOT licenses. There are individuals who lose their DOT certification and pursue into the collective bargaining agreement. They are accommodated for some period of time. But those jobs, the individuals who lose their DOT certification are not light duty jobs. Those are heavy lifting jobs as the district court squarely held. The district court at page 36a and 59a said, inside jobs are not light duty jobs and the individuals who lose their license can perform any number of demanding physical tasks which Ms. Young could not perform. So they're not comparable in that regard either. With respect to the EEOC guidance, the guidance which was issued two weeks after this court granted certiori is a 180 degree change from the position that the government has consistently taken and that the postal service which UPS fairly looked to in trying to ascertain what appropriate conduct was under federal anti-discrimination laws, the policy that it still has in place today. In addition, the process in issuing that guidance was incredibly rushed. It was not until 2012, as one of the Amicus briefs point out, that the EEOC even identified the question of pregnancy accommodations as an emerging or developing issue. There was no notice in comment. The original guide on it. As I understand EEOC, what they did in 2014, they said, we were churse the first time around. All we're doing in 2014 is explaining what the original, what was the, it was 79

. So why don't we have to look at the facts? First of all, Your Honor, that would be relevant to a disparate impact claim which the petitioner did not bring. Secondly, there was extensive discovery in this case. There was summary judgment granted with uncontroverted evidence that establishes exactly the opposite of what you're suggesting. So there's no need to do that. This is a very straightforward case, and but for the effort by the petitioner to bring the record back into play at this late date, none of this would be something that you would ever consider. Is there really a dispute about this? Maybe Petitioner's Council could address it in rebuttal, but is there really a dispute that if a UPS driver fell off his altering vehicle on the weekend and was unable to lift that person would not be given like duty? Is that really disputed? There's no dispute at all. In the district court made a square finding exactly to that effect at page 56a and page 30, 35a. I would also direct you in our red brief to page 5 where we set forth Ms. Martin's testimony that she never authorized an accommodation for anyone who was injured off the job. So that's there as well. I'd like to turn briefly if I can to the question of the EEOC guidance that the solicitor general. But there are individuals who are injured off the job who lose their DOT licenses. There are individuals who lose their DOT certification and pursue into the collective bargaining agreement. They are accommodated for some period of time. But those jobs, the individuals who lose their DOT certification are not light duty jobs. Those are heavy lifting jobs as the district court squarely held. The district court at page 36a and 59a said, inside jobs are not light duty jobs and the individuals who lose their license can perform any number of demanding physical tasks which Ms. Young could not perform. So they're not comparable in that regard either. With respect to the EEOC guidance, the guidance which was issued two weeks after this court granted certiori is a 180 degree change from the position that the government has consistently taken and that the postal service which UPS fairly looked to in trying to ascertain what appropriate conduct was under federal anti-discrimination laws, the policy that it still has in place today. In addition, the process in issuing that guidance was incredibly rushed. It was not until 2012, as one of the Amicus briefs point out, that the EEOC even identified the question of pregnancy accommodations as an emerging or developing issue. There was no notice in comment. The original guide on it. As I understand EEOC, what they did in 2014, they said, we were churse the first time around. All we're doing in 2014 is explaining what the original, what was the, it was 79. 79 guidelines. 79 guidelines simply mimic the language of the statute. In 2012, the EEOC in its strategic plan said that it was looking at addressing the very issue that it opined on in the 2014 guidance as emerging. If the 1979 guidelines stood for what petitioner suggests, there would have been no need to treat it as emerging. It would have been settled 30 years ago. Finally, I want to point out that this is an area where the democratic process is working as it should and as this Court instructed it should in CalFED. In CalFED, this Court looked at the question of whether or not state statutes which provided preferential treatment to pregnant employees. The statute there provided extra leave and reinstatement rights to pregnant employees was preempted by the PDA. The Court said the PDA sets a floor. That floor is that you can't single out pregnancy for adverse treatment. States can go beyond that as additional and new challenges are identified. Well, Miss Elegant, for the democratic process to work as it should, the PDA has to be given a fair reading. What we know about the PDA is that it was supposed to be about removing stereotypes of pregnant women as marginal workers. It was supposed to be about ensuring that they wouldn't be unfairly excluded from the workplace. What you're saying is that there's a policy that accommodates some workers but puts all pregnant women on one side of the line. What you're further saying is that the employer doesn't even have to justify that policy, Arla McDonald Douglas. That seems to me a reading of the statute, the PDA, that ignores two-thirds of the text. I'm not saying that the employer isn't subject to a suit under McDonald Douglas. I'm saying that there are no valid comparators here. That's all that we're saying in that regard. So if they somehow- I'm not saying that there's non-pregnant people who are out. Any group at all. If you had a policy, I'm not sure what one would look like, that's singled out, pregnant employees plus one other employee. My guess is that the camera is employees. The policy that's at issue here, Justice Ginsburg, distinguishes on-the-job versus off-the-job injuries. That's a distinction that's echoed in State and in Federal law

. 79 guidelines. 79 guidelines simply mimic the language of the statute. In 2012, the EEOC in its strategic plan said that it was looking at addressing the very issue that it opined on in the 2014 guidance as emerging. If the 1979 guidelines stood for what petitioner suggests, there would have been no need to treat it as emerging. It would have been settled 30 years ago. Finally, I want to point out that this is an area where the democratic process is working as it should and as this Court instructed it should in CalFED. In CalFED, this Court looked at the question of whether or not state statutes which provided preferential treatment to pregnant employees. The statute there provided extra leave and reinstatement rights to pregnant employees was preempted by the PDA. The Court said the PDA sets a floor. That floor is that you can't single out pregnancy for adverse treatment. States can go beyond that as additional and new challenges are identified. Well, Miss Elegant, for the democratic process to work as it should, the PDA has to be given a fair reading. What we know about the PDA is that it was supposed to be about removing stereotypes of pregnant women as marginal workers. It was supposed to be about ensuring that they wouldn't be unfairly excluded from the workplace. What you're saying is that there's a policy that accommodates some workers but puts all pregnant women on one side of the line. What you're further saying is that the employer doesn't even have to justify that policy, Arla McDonald Douglas. That seems to me a reading of the statute, the PDA, that ignores two-thirds of the text. I'm not saying that the employer isn't subject to a suit under McDonald Douglas. I'm saying that there are no valid comparators here. That's all that we're saying in that regard. So if they somehow- I'm not saying that there's non-pregnant people who are out. Any group at all. If you had a policy, I'm not sure what one would look like, that's singled out, pregnant employees plus one other employee. My guess is that the camera is employees. The policy that's at issue here, Justice Ginsburg, distinguishes on-the-job versus off-the-job injuries. That's a distinction that's echoed in State and in Federal law. That's a far cry from a policy that singles out pregnant women. There are nine states in the United States. What the first. Or targeting or otherwise primarily disadvantageant. That distinction tracks what workers' comp requires, which is payment for employees who are injured on the job. And many employers, including the U.S. Postal Service, have found that advantageous to provide light-duty accommodations so their employees can be at work while they're at work for the company. That distinction is as legitimate as you could get. I see my time as a parent. Thank you, Council. Mr. Baggins, thoughts you have four minutes remaining? Thank you, Mr. Chief Justice. So I'd like to begin if I could with the facts, because Justice Alito did ask. And yes, we certainly do disagree with UPS's assertion here. This case was on summary judgment. And UPS does point correctly to some very general statements in the record by UPS managers that they never authorized these accommodations. However, we point to specific examples in the record of people with off-the-job injuries or illnesses who were DOT-desertified, who were given accommodations, and not just accommodations that removed them from driving, but also removed them from heavy lifting. That's a factual dispute that has to go to trial. I mean, you really want to have a, you really think you could prove a trial that if somebody is injured in a recreational activity over the weekend that they get light duty, but a pregnant woman does not maybe? So if someone is injured over the weekend in a way that leads them to be DOT-desertified, yes, and in fact, the UPS managers so testified about a sports injury, we cite that in our opening brief. So yes, we think so. The second point I'd like to make is about what the two clauses do. And I think this is very important. So the first clause of the PDA, as this Court has said in Newport News and CalFed, overturns the reasoning in General Electric for Gilbert. So what the first clause says is where Gilbert said, look, discrimination based on pregnancy isn't sex discrimination because they're a pregnant woman and non-pregnant person, that's wrong instead because of pregnancy is because of sex, definitionally

. That's a far cry from a policy that singles out pregnant women. There are nine states in the United States. What the first. Or targeting or otherwise primarily disadvantageant. That distinction tracks what workers' comp requires, which is payment for employees who are injured on the job. And many employers, including the U.S. Postal Service, have found that advantageous to provide light-duty accommodations so their employees can be at work while they're at work for the company. That distinction is as legitimate as you could get. I see my time as a parent. Thank you, Council. Mr. Baggins, thoughts you have four minutes remaining? Thank you, Mr. Chief Justice. So I'd like to begin if I could with the facts, because Justice Alito did ask. And yes, we certainly do disagree with UPS's assertion here. This case was on summary judgment. And UPS does point correctly to some very general statements in the record by UPS managers that they never authorized these accommodations. However, we point to specific examples in the record of people with off-the-job injuries or illnesses who were DOT-desertified, who were given accommodations, and not just accommodations that removed them from driving, but also removed them from heavy lifting. That's a factual dispute that has to go to trial. I mean, you really want to have a, you really think you could prove a trial that if somebody is injured in a recreational activity over the weekend that they get light duty, but a pregnant woman does not maybe? So if someone is injured over the weekend in a way that leads them to be DOT-desertified, yes, and in fact, the UPS managers so testified about a sports injury, we cite that in our opening brief. So yes, we think so. The second point I'd like to make is about what the two clauses do. And I think this is very important. So the first clause of the PDA, as this Court has said in Newport News and CalFed, overturns the reasoning in General Electric for Gilbert. So what the first clause says is where Gilbert said, look, discrimination based on pregnancy isn't sex discrimination because they're a pregnant woman and non-pregnant person, that's wrong instead because of pregnancy is because of sex, definitionally. That's not what the second clause does. That's what the first clause does. The second clause, as this Court said, again in Newport News and CalFed, goes further and over rules the holding. And I think Justice Kagan was exactly correct in describing the facts of Gilbert that the Gilbert holding would not be overturned under UPS's reading here because the Gilbert policy, the one thing we know that Congress meant to say was illegal. The Gilbert policy itself acted, drew lines in pregnancy neutral ways. It said if you have an off-the-job injury or accident, defined as an accidental injury, then you get disability benefits. It just so happens, pregnancy isn't an illness and pregnancy isn't an accident in the sense of an accidental injury. And what Congress, we know Congress was trying to do because Congress said it and this Court said it is to overturn the holding there, but UPS's rule simply reprises the rule at issue in Gilbert. If I might return to the point Justice Breyer has made a couple of times in various points in the argument. So I actually, I think the reverse. The second sentence is what does that. The second sentence says, you don't worry about whether it's between sexes. You worry about whether the same class of people, people who are vengared off duty, are being treated differently. Well, I think they have the same ability to work. I think Justice Sotomayor, the first clause says you don't worry about whether the same sex are not. You don't look at sexes. No, you do have to worry about it because it still has to be sexist. No, but the first clause definitionally defines pregnancy discrimination as sex discrimination says if you're discriminating because of pregnancy, that is because of sex. And that's the overturning the Gilbert reasoning coming from Gidol dig that pregnancy discrimination isn't sex discrimination. The second clause goes further as this Court's explained and overturns the holding. Overturns the holding up holding the general electric policy. And so I think under UPS's rule, it wouldn't do that. On Justice Breyer's question, basically, how do we deal with a world where there's an employer that treats two different groups of people who are non-pregnant differently? It does, shall be treated the same, mean shall be treated the same as those who get the better deal or those who get the worst deal, right? And I think Justice Ginsburg and Justice Kagan, I think, articulated this well, that their position really would give least-favor nation status to pregnant workers. And we know that that can't be something that Congress intended. We know that in part because of what General Verily said that that's not how anti-discrimination law works. The fact that someone else was discriminated against doesn't mean I lose Justice Alito's opinion for the Third Circuit and the Fraternal Order of Police of Newark case, articulates the same rule

. We know that as well because the purpose of this statute is to say to employers, as Justice Kagan said. You have to treat pregnant workers as just as valued employees as anybody else. And if you think it's valuable to keep these employees on the job who are injured on the job because they keep valuable knowledge within the company, do that for pregnant women. Thank you. Thank you, Counsel. The case is submitted