Will Supreme Court endorse discrimination against pregnant workers?

Pregnancy discrimination case brings together advocates from opposite side of reproductive rights debate

In some ways, the pregnancy discrimination case argued today at the U.S. Supreme Court has turned out to be a beautiful thing. Groups that are usually at each other’s throats over reproductive rights are working together to persuade the justices that women should not be penalized by their employers when a pregnancy temporarily limits their ability to perform all aspects of a job.

The case was brought by a veteran UPS driver named Peggy Young, who worked in Maryland. In 2006, UPS forced Young to take an unpaid leave after refusing to accommodate her doctor’s order that she not lift heavy packages during her pregnancy.

You can’t do the work you were hired to do, UPS told Young, so you are outta here. Young lost not just her income, but her health insurance as well.

As she told NPR’s Nina Totenberg:

“Many nights I didn’t sleep so well…I couldn’t work when I wanted to work. They coded me in their system as disabled, but I didn’t qualify for disability because I could work. I’m a normal person, I was just pregnant.”

I certainly hope the Supreme Court will see its way to overturning the lower courts in this case. The U.S. Court of Appeals for the 4th Circuit found that UPS did not violate the 1978 Pregnancy Discrimination Act when the company told Young it would not accommodate her disability because her condition was not caused by her work. (This, despite the fact that UPS made temporary accommodations for drivers who had lost their federal drivers licenses due to DUIs, who had failed medical exams, who had been injured in car accidents or were considered disabled under the Americans with Disabilities Act.)

UPS claims that Young is seeking “special treatment” for pregnant employees. But pregnancy is a unique, temporary, and you might even say, special, condition. Acknowledging and accommodating that seems fair.

After all, only women can become pregnant, and only women can be treated differently when they do. Young claims that the way she was treated amounts to illegal gender discrimination, and I have a hard time disagreeing with that.

On Monday, several diverse groups that support Young participated in a conference call with reporters about the case. Usually when I’m on the line with the ACLU Women’s Rights Project and the National Women’s Law Center, the topic is the continuing war on women’s access to abortion and their efforts to stop states from rolling back the clock on abortion rights.

But this call was different.

Representatives of those avidly pro-abortion rights groups were joined by the National Association of Evangelicals, Democrats for Life (whose goal, as its president said, is “to end abortion in America”), and a state representative from Delaware who identified himself as a “very conservative Republican.”

Advocates from the women’s rights groups – at least two of whom worked on the original Pregnancy Discrimination Act legislation – said the court should interpret the act to include temporary accommodations for pregnant workers.

“Every family in America has a stake in the outcome of this case,” said Judith L. Lichtman, a senior advisor to the National Partnership for Women and Families, which submitted a friend-of-the-court brief on behalf of 12 groups committed to maternal and fetal health.

Denying a pregnant woman minor work modifications, like allowing her to carry a water bottle, take more frequent bathroom breaks or carry a lighter load, said Lichtman, puts her in the position of making an “impossible choice: following her doctor’s advice or jeopardizing her family’s economic security.”

The head of the National Association of Evangelicals said that when Congress passed the Pregnancy Discrimination Act, it “sought to protect women from economic pressure to abort their children.” If the court rejects Young’s argument, said Galen Carey, pregnant women would have to decide between pregnancies and their jobs.

“Every society is one generation away from extinction,” said Carey. “It is only through the blessing of procreation that our society passes on to the next generation that which we have received from God.”

UPS, he said, put Young in an impossible bind: “Lose her job or lose her baby. To those who believe in the sanctity of life, those words are chilling.” (They’re are chilling to anyone, not just abortion opponents, but I take his point.)

Delaware state Rep. Colin Bonini, the conservative Republican, noted that nine states, including his, have already passed legislation requiring employers to grant pregnant women temporary accommodations if needed. "This just makes sense," he said. "From a strictly public policy perspective, this is the right thing to do."

Who is on the other side of this debate? The U.S. Chamber of Commerce, naturally. The Society for Human Resource Management. The American Trucking Associations, which says its members will have a difficult time accommodating pregnant drivers.

And, sigh, the anti-women’s-rights Eagle Forum has also filed a brief in support of UPS. It argued that when Congress passed the Pregnancy Discrimination Act in 1978, it never intended "to eliminate stereotypes of husband-breadwinner, wife-homemaker families; to have women return to work immediately after giving birth to the exclusion of caring for their newborns; or to privilege the status of female truck drivers over either male truck drivers or the women married to male truck drivers.” (You see why I sigh.)

Perhaps the most telling aspects of this case are two developments that are not really part of the legal argument at all.

First, after the Supreme Court agreed to hear Young vs. UPS, the company changed its policy regarding accommodations for pregnant women. Starting in January, it will treat the temporary disabilities of pregnant women as it treats the temporary disabilities of other employees.

And second, the federal government, via the Equal Employment Opportunity Commission, issued new guidelines last summer clarifying how the Pregnancy Discrimination Act should be applied: “Women who are temporarily unable to perform their jobs due to medical conditions related to pregnancy or childbirth must be treated the way other temporarily disabled employees are treated.”

Let’s hope the conservative members of the Supreme Court, which have not had such a great record on women’s rights this year (as I have noted here, here and here) will ratify the progress that UPS, the federal government and an increasing number of states have already made.

A decision is expected in June.

Please follow me on Twitter: @robinabcarian

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