concurring and dissenting. I agree with the majority that FEPA prohibits discrimination on the basis of pregnancy. I disagree, however, with the majority’s conclusion that plaintiff’s disparate-treatment claim must fail because defendant’s policy is “facially neutral.” 166 Vt. at 212, 692 A.2d at 371. The majority disregards both the established standards that govern employment discrimination claims and the compelling policies that underpin the prohibition on pregnancy discrimination. In my view, plaintiff has made a sufficient showing, under the settled precedent of this Court and the United States Supreme Court, to survive summary judgment and go to trial on her claim of pregnancy discrimination.
I.
The majority resolves this case simply by concluding that the employer’s practice of treating employees injured on the job better than those injured off the job is appropriate and nondiseriminatory. The majority reasons that, since defendant’s accommodation scheme employs the same classification as the workers’ compensation program, defendant’s program cannot be considered discriminatory. I disagree. The workers’ compensation program predates FEPA and was designed for a different purpose. The goal of workers’ compensation is to provide for speedy and relatively uncomplicated resolution of employees’ claims against employers for injuries received on the job. See Morrisseau v. Legac, 123 Vt. 70, 76, 181 A.2d 53, 57 (1962); DeGray v. Miller Bros. Constr. Co., 106 Vt. 259, 274, 173 A. 556, 562 (1934). In exchange for assuring employees a remedy “both expeditious and independent of proof of fault,” the liability of employers is limited and definitely established. Morrisseau, 123 Vt. at 76, 181 A.2d at 57. As the New York Court of Appeals has noted, laws prohibiting discrimination in employment and laws mandating benefits for disabled workers are “skew lines,” passing each other without intersection, and establishing different, but not conflicting, minimum requirements for employers. Brooklyn Union Gas Co. v. New York State Human Rights Appeal Bd., 359 N.E.2d 393, 396 (N.Y. 1976) (objective of human rights law was quite different from, though not necessarily at odds with, older disability benefits law).
Defendant cannot, of course, be subject to a discrimination claim for extending workers’ compensation benefits only to those disabled on the job — that is, for doing what is required by law. But rather *217than paying temporarily disabled workers the required workers’ compensation benefits, which are less than full pay, see, e.g., 21 V.S.A. §§ 642, 646, defendant has chosen to provide those employees with light-duty work at full pay* Plaintiff’s claim, therefore, is that she is similarly situated to the employees that defendant has voluntarily decided to accommodate on the job.
The majority glosses over this argument, noting merely that plaintiff did not allege “that the employer treated nonpregnant employees with nonwork-related injuries more favorably” than plaintiff. 166 Vt. at 212, 692 A.2d at 371. In doing so, the majority simply accepts the employer’s classification at face value. But plaintiff’s claim challenges the classification drawn by the employer. She points to other disabled employees who have been given the benefit of light-duty jobs at full pay, and alleges that she is similarly situated to those employees. The majority disregards this argument, in effect assuming that the employer is entitled to decide which employees are similarly situated to plaintiff. I see no reason to accept defendant’s argument, that plaintiff should be compared to other employees denied accommodation, over plaintiff’s claim that she is similarly situated in her ability to work to employees who have received light duty.
Consider an analogy. Both state and federal governments have special programs that classify people with disabilities, providing benefits to people who fit in certain categories. See, e.g., 20 C.F.R. § 404.1525(a) (1996); id. pt. 404, subpt. R app. 1 (listing of impairments that qualify for federal disability benefits). An employer could not, however, choose to accommodate disabled employees based on those same classifications. The employer’s legal obligation to provide reasonable accommodation for a disabled employee is governed by FEPA, and turns on whether the employee is a “qualified handicapped individual” for the purposes of FEPA. 21 V.S.A. § 495(a)(1); Potvin v. Champlain Cable Corp., 165 Vt. 504, 512, 687 A.2d 95, 100 (1996). Similarly, defendant may not escape plaintiff’s claim of pregnancy discrimination simply by pointing to the workers’ compen*218sation program. The classifications drawn in government entitlement programs are not necessarily appropriate for an employer to use to decide which employees get to work under FEPA.
This is especially true where, as here, defendant has employed a classification that always excludes pregnant women from job opportunities. Employers have a long history of firing pregnant women or imposing mandatory (unpaid) leave, without reference to an individual woman’s ability to perform her job. These arbitrary, discriminatory policies have helped to keep women from achieving parity with men in the workplace. See H.R. Rep. No. 948, 95th Cong., 2d Sess. 6 (1978), reprinted in 1978 U.S.C.C.A.N. 4749, 4754. The federal Pregnancy Discrimination Act (PDA) was specifically intended to prohibit employers from making arbitrary decisions about pregnant women’s capacity for employment. Id. According to the House Report on the PDA, employer requirements and benefits, including the practice of “transferring workers to lighter assignments,” must be “administered equally for all workers in terms of their actual ability to perform work.” Id. at 5, reprinted in 1978 U.S.C.C.A.N. at 4753. This standard is reflected in the language of the PDA, which states that “women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes ... as other persons not so affected but similar in their ability or inability to work.” 42 U.S.C. § 2000e(k).
The PDA makes explicit the standard that, logically, must be used to evaluate a claim under the mandate the Court adopts today — that pregnant women must receive equal treatment on the job. A pregnant woman must be treated in the workplace according to her individual ability to work. There is nothing unique about the federal statutory language; in light of the history of arbitrary and unreasonable restrictions imposed on pregnant workers, it is the only reasonable way to interpret the mandate that pregnant women receive equal treatment on the job. Plaintiff’s claim is based on this standard. She complains that her request for light duty was not evaluated in light of her individual ability to work. Instead, she was sent home from work and forced to take a low-paying disability leave, when other similarly disabled employees were given light-duty work at full pay. In my opinion, she has made a colorable claim of discrimination that should survive defendant’s motion for summary judgment.
n.
The majority can easily disregard the validity of plaintiff’s claim because it decides this case without reference to the standards and *219burdens of proof that we have adopted to decide FEPA claims. Instead, the majority holds that defendant’s policy is not a “per se” violation of FEPA. 166 Vt. at 215, 692 A.2d at 373. This reasoning unjustifiably equates a disparate-treatment claim, such as that alleged by plaintiff, with a claim that an employer’s policy or practice on its face “evinces discrimination on the basis of sex.” International Union, UAW v. Johnson Controls, Inc., 499 U.S. 187, 199 (1991). Obviously, some sex discrimination cases, including some that involve pregnancy discrimination, are challenges to employer policies that explicitly discriminate on the basis of sex. See, e.g., id. at 198 (only female employees required to prove that they are not capable of reproducing in order to work in jobs involving lead exposure). In such a case the only issue in dispute is whether sex is a bona fide occupational qualification (BFOQ) for the given job. See 42 U.S.C. § 2000e-2(e)(1); 21 V.S.A. § 495(a). A disparate-treatment claim does not fail, however, merely because a plaintiff cannot point to an employer policy that explicitly treats women, or pregnant women, different from other employees. Even where an employer claims to be acting in a unbiased manner, a plaintiff may attempt to “persuad[e] the trier of fact that the defendant intentionally discriminated against” her. Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981).
Plaintiff’s case should be evaluated, like any claim of disparate treatment, in light of the shifting-burden analysis first established by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973), and later applied to FEPA claims by this Court. See Hodgdon v. Mt. Mansfield Co., 160 Vt. 150, 159, 624 A.2d 1122, 1127 (1992); State v. Whitingham Sch. Bd., 138 Vt. 15, 19, 410 A.2d 996, 998-99 (1979). Under that scheme, plaintiff has the initial burden of establishing a prima facie case of disparate treatment. Hodgdon, 160 Vt. at 159, 624 A.2d at 1127. “This burden is a relatively light one,” see id., and plaintiff has met it. She has established that: 1) as a pregnant woman, she is a member of a protected class; 2) she asked her employer to accommodate her by providing alternate, light-duty work when she was unable to perform her usual job due to a pregnancy-related disability; 3) her employer refused to accommodate her and instead required her to take disability leave at reduced pay, and 4) her employer has provided such accommodation to workers who are not members of the protected class, that is, men. In my opinion, these facts are sufficient to raise an inference of discrimination; if otherwise unexplained, a court could presume that *220the employer’s conduct was based on plaintiff’s sex or pregnancy. See Burdine, 450 U.S. at 254 (prima facie case creates presumption that employer unlawfully discriminated against employee); Hodgdon, 160 Vt. at 159, 624 A.2d at 1127 (plaintiff established prima facie case by showing that she was fired because she did not wear dentures while two male employees were not required to wear dentures).
“[0]nce plaintiff has established a prima facie case, the burden shifts to the employer ‘to articulate some legitimate, nondiscriminatory reason’” for its conduct. Hodgdon, 160 Vt. at 159, 624 A.2d at 1127 (quoting McDonnell Douglas, 411 U.S. at 802). Although the ultimate burden of persuasion remains at all times with plaintiff, Burdine, 450 U.S. at 253, the employer must rebut the presumption of discrimination with a nondiscriminatory explanation of the challenged conduct. This forces the parties to properly frame the factual issue before the court: the employer must provide a legitimate reason for its conduct, and the employee must persuade the court that the proffered explanation is a pretext for discrimination. Id. at 254-56. In effect, this is no different from plaintiff’s ultimate burden of persuasion; to persuade the court that the employer intentionally discriminated against her, plaintiff must show that the nondiscriminatory reason given by the employer was not the true reason for the employment decision. Id. at 256.
Here, the employer has provided an explanation for its refusal to accommodate plaintiff. Defendant maintains that the decision to accommodate a disabled employee turns on whether the employee was injured on or off the job. Employees injured at work are accommodated, while employees who are injured off the job are required to take disability leave. Thus, according to defendant, its decision not to accommodate plaintiff was based not on her sex or pregnancy but on the fact that her disability was not work-related.
To succeed in her claim, then, plaintiff must persuade the trier-of-fact that the explanation given by defendant is a pretext for discrimination against pregnant women. She can do so “either directly by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer’s proffered explanation is unworthy of credence.” Id. Although additional evidence could strengthen plaintiff’s case, she is not obligated at this point to come forward with new evidence. She can rest on the evidence introduced to support her prima facie case. See id. at 255 n.10 (although legally-mandated presumption of discrimination drops from case when employer provides nondiscriminatory explanation for *221conduct, evidence provided to establish prima facie case and inferences properly drawn therefrom may be considered by trier of fact on issue of whether defendant’s explanation is pretextual). In essence, plaintiff poses a credibility contest between her claim of pregnancy discrimination and defendant’s claim that its conduct was motivated by a nondiscriminatory policy. In my opinion, that is an issue of fact that should be resolved at trial.
The majority apparently believes that a facially neutral policy can be challenged only on the basis of its discriminatory impact. I cannot accept this conclusion. It is not inconceivable that an employer would design a facially neutral classification such as this one with an intent to exclude pregnant women from benefits provided to other employees. With a growing female workforce, employers may be increasingly reluctant to pay for costs associated with pregnancy. Regardless of how a classification appears on its face, however, an employer may not adopt it with an intent to discriminate against a protected class. I believe that plaintiff is entitled to go to trial on her disparate-treatment claim, and attempt to persuade the court that defendant’s facially neutral policy is a pretext for discrimination against pregnant women. I therefore dissent.
Although the majority refers to statutory provisions that mandate rehabilitation services for injured workers, see 21 YS.A. § 641, defendant’s policy of providing light-duty work for some employees and not for others is not based on the workers’ compensation laws. Plaintiff challenges the classification that defendant uses to award benefits beyond those required by law. A decision in plaintiff’s favor therefore would not reach the “gender consequences,” 166 Vt. at 215, 692 A.2d at 373, of the workers’ compensation laws.