Argument preview: Pregnancy and workplace equality
At 10 a.m. Wednesday, the Supreme Court will hold one hour of oral argument on the kind of protection against workplace discrimination that a 1978 federal law provides for women who become pregnant. Arguing for Peggy Young in Young v. United Parcel Service, Inc., will be Samuel R. Bagenstos of Ann Arbor, Mich., a law professor at the University of Michigan; he will have twenty minutes of time. Representing the federal government as an amicus in support of Young will be U.S. Solicitor General Donald B. Verrilli, Jr., with ten minutes of time. UPS will be represented by Caitlin J. Halligan of the New York City office of the law firm of Gibson, Dunn & Crutcher LLP, with thirty minutes of time.
For nearly four decades, it has been a form of illegal discrimination in the workplace to treat women workers unequally, just because they become pregnant. But it still is not entirely clear just how much and what kind of equality that provision imposes on businesses. They clearly cannot treat pregnancy as a reason to fire a worker, or cut her pay, or to deny her health benefits. That is outright discrimination based on sex, under the Pregnancy Discrimination Act, added in 1978 to Title VII of federal civil rights law.
But women’s rights advocates, and the federal Equal Employment Opportunity Commission, take the position that the Act adds another layer of protection for pregnant workers: if an identified group of workers on the payroll gets lighter duty, or easier inside-the-plant assignments such as paperwork or answering phones, because they are temporarily disabled, the same opportunity should be available to workers whose doctors limit the kind of work they can do during pregnancy. The Supreme Court is reviewing that claim in the case of Young v. United Parcel Service, Inc.
The petitioner in the case, Peggy Young of Virginia, formerly was a driver for UPS in Maryland, delivering packages to customers. After she became pregnant, her doctors told her that she should not lift packages weighing more than twenty pounds for the first twenty weeks of her pregnancy; after that, she should not lift more than ten pounds.
The problem for Young was that company policy, for the kind of driving that Young did, required the driver to be able to lift, push, pull or otherwise move any item that weighed as much as seventy pounds, if it was not oddly shaped. Young was told that, as long as she was under doctor’s orders not to do any significant lifting, she could not return to work in any job while pregnant.
She was simply unable to do the tasks her specific job required, the company told her. It had nothing to do with her pregnancy, UPS argued, because all drivers in Young’s category had to satisfy the lifting rules.
UPS, however, did accommodate its other workers with light-duty assignments, if they were injured on the job, qualified as legally disabled under the federal Americans with Disabilities Act, or had lost their federal driver’s certificate because they failed a medical exam, lost their driver’s license, or had been involved in a car or truck accident. That option, Young was told, was not open to her because of the limitations of her pregnancy, and she did not meet any of the conditions.
She complained to the EEOC, which cleared her for a lawsuit against UPS. Among other claims she made in federal district court, Young contended that UPS had violated the 1978 law by discriminating against her based on sex, due to her pregnancy, and that it had refused to treat her equally under a separate clause of the law which guaranteed that pregnant workers “shall be treated the same for all employment-related purposes” as compared to other employees with a similar ability or inability to work. She lost on both points in the trial court, and in the U.S. Court of Appeals for the Fourth Circuit.
The Fourth Circuit found no direct evidence of sex discrimination based on pregnancy, ruling that the disability policy was “pregnancy-blind” — that is, the company’s limits on accommodation applied to all workers who met one of the specified conditions, and only those workers; it did not single out pregnant workers for less favorable treatment. And that court rejected Young’s separate claim that she had a right to the same treatment as the workers who did meet those conditions. That clause in the Act, the appeals court said, does not create an independent legal right for pregnant workers to pursue.
Young’s attorneys took the case on to the Supreme Court, claiming that the Fourth Circuit had read out of the 1978 Act the equal treatment guarantee for workers who become pregnant. A group of law professors and women’s rights organizations supported the petition, contending that the appeals court ruling revived a kind of stereotyping of pregnant workers, putting them in a class by themselves in the loss of workplace rights.
The Supreme Court asked the federal government for its views on the case. The U.S. Solicitor General urged the Court to bypass the case, saying that, while most appeals courts had misinterpreted employers’ obligations under the Act, those courts might change their minds after reviewing some amendments Congress had made in the law in 2008. The government also said that EEOC was writing new enforcement guidelines, so the Court should wait until those were issued.
On the legal point Young was seeking to raise, the government brief said, the Act should be treated as protecting a pregnant worker if she could identify a category of non-pregnant fellow employees who are similar in ability to work but were treated more favorably. (This marked a switch in the government’s former policy, which had declared that pregnant workers with limitations on what they could do on the job were not similar to workers who had the same limitations but those had resulted from on-the-job injuries.)
Declining to take the government’s advice against granting review, the Court accepted the case on July 1. After that order came out, EEOC issued its new guidelines, noting that it had long held a view different from the Fourth Circuit’s and stressing anew that an employer “may not refuse to treat a pregnant worker the same as other employees who are similar in their ability or inability to work by relying on a policy that makes distinctions based on the source of an employee’s limitation.”
Briefs on the merits
Peggy Young’s merits brief framed the issue before the Court as a simple matter of interpreting the plain words of the Pregnancy Discrimination Act’s second category of protection — equal working opportunity. The UPS policy, though “pregnancy blind,” is illegal under the Act without any need to ask what the management’s intention was, the brief argued. Pregnancy, it noted, is the only condition for which light-duty accommodations are denied.
That should end the case, without any need to go through the analytical formula of requiring Young first to make a case of discrimination, then giving UPS a chance to show why it did not act illegally, according to the filing.
Under the Fourth Circuit’s approach, Young’s lawyers contended, the second clause of the Act adds nothing to the first clause, outlawing workplace discrimination based directly on the fact of pregnancy. If UPS wins on that point, the second clause would not serve the purpose that Congress intended: assuring equality in the day-to-day conditions of the workplace for female employees who become pregnant.
The Young brief also sought to counter the UPS argument that forcing it to extend light-duty accommodations to pregnant workers with work limitations would violate the company’s obligations under its labor union contract. By accommodating Young and other female workers, the company would not be displacing a more senior worker, the filing argued.
UPS’s brief on the merits focused mainly on the point that what Young is seeking is “special treatment for pregnant employees” — something, the company argued, that the Act does not require. What the 1978 law targeted, the filing said, was “traditional anti-discrimination” practices when applied to workers who become pregnant.
Historically, the brief said, all three branches of the federal government rejected Young’s view of what the Act required. It has been rejected by every federal court to have considered it, Congress has declined to write her claim specifically into the Act, and the Justice Department had consistently defended a similar accommodations policy followed by the postal service (a policy that the Justice Department told the Court is now being reconsidered). And, the UPS brief went on, the EEOC changed its mind after the Court agreed to hear Young’s case.
Young need not prevail on her argument under the Act in order to gain protection on the job, UPS asserted. Congress has amended federal disability rights law to broaden the kinds of disabilities for which an employer accommodation is required, the brief said. Some states have gone even further, it added.
As a final point in its favor, the delivery company said it has since changed its policy. While that approach was legal when used against Young in this instance, the brief said, “pregnant UPS employees will prospectively be eligible for light-duty assignments.” Thus, it said, Young is not entitled to money damages for the denial of accommodation under the prior policy.
More broadly, the UPS document contended that Young’s approach to the 1978 law “would call into question neutral employment distinctions — such as salaries versus hourly and full-time versus part-time, in addition to on-the-job versus off -the-job” conditions affecting work performance. Even workers’ compensation laws would be negatively affected, the brief argued.
The Obama administration has lined up as an amicus on Young’s side, now that the Court has granted review of her case. Its brief, like Young’s, focused on interpreting the language of the Act. Because the Act gives a pregnant employee protection against discrimination based solely on her pregnancy, the brief contended, work limitations that favor other employees cannot be justified by locating the source of the need for limited work assignments.
“The text of Title VII focuses entirely on whether a pregnant employee is similar in her ability to work to a non-pregnant employee, not on why each employee has the relevant limitation,” according to the Justice Department’s lawyers. By treating some workers more favorably in granting accommodations to their physical condition, a company “discriminates on the basis of pregnancy even when it does not mention pregnancy by name,” the brief said, adding that the Act mandates equal treatment among workers with similar ability to do the job.
It was up to Congress, not to individual employers, the government brief asserted, to decide whether to extend anti-discrimination law to female workers who could become pregnant. “Congress understood the vital role that working mothers play in American families and made the policy decision to protect the ability of such women to provide for their families at the very time they are becoming mothers.”
Moreover, the government argued, Title VII does not require special treatment of all kinds for pregnant workers: “It merely requires that, when an employer accommodates non-pregnant employees who are similar in their ability or inability to work, it also accommodates pregnant women to the same degree.”
Beyond the Justice Department’s support, Young has also gained a significantly greater show of support from amici than UPS has. Aside from expected support from labor unions, civil liberties groups and women’s rights advocates, Young’s amici include anti-abortion groups who worry that failure to accommodate pregnancy will discourage women from continuing their pregnancies, and several members of Congress and of state legislatures.
UPS’s thinner rank of amici supporters includes mainly business organizations or human resources management groups, along with a conservative legal advocacy organization, Eagle Forum.