Last week, the Supreme Court heard oral argument in Young v. UPS, a case that could change the way pregnant women are treated by their employers. The case will force conservative justices to choose between two core right-wing constituencies: anti-choice activists and pro-business groups.
In 2006, Peggy Young was in her fifth year as a part-time driver for UPS, a position which required her to move mostly envelopes and small packages. When she became pregnant, her doctor advised her against lifting more than 20 pounds for the duration of her pregnancy. UPS policy requires all drivers to be able to lift up to 70 pounds at a time, so Young asked the company if she could be put on “lighter duty” while pregnant — i.e., if she could answer phones or work a desk job — which UPS provided for employees who were (i) disabled, (ii) had been injured on the job or (iii) had lost their commercial driver’s license.
UPS denied Young’s request, reasoning that pregnancy was neither a disability nor an on-the-job injury and therefore did not warrant a lighter-duty assignment. Instead, she was put on immediate unpaid leave and lost her benefits — including her health insurance — for the next nine months.
Young sued UPS under the Pregnancy Discrimination Act (PDA), which in 1978 amended Title VII of the Civil Rights Act of 1964 to explicitly prohibit sex discrimination on the basis of pregnancy.
UPS’ defense was that its policy was “pregnancy neutral,” meaning it didn’t explicitly discriminate against against employees based on their pregnancy status. In other words, the policy said  nothing about pregnancy one way or another; rather, pregnancy was just one of many potential conditions that would not have qualified for a lighter-duty assignment.
The trial court and the Fourth Circuit agreed with UPS. The company did not single out pregnant workers for worse treatment, they argued, nor did it deny pregnant workers the same rights as those who did meet the company requirements for light duty. In other words, if Young happened to be pregnant and was injured on the job, she wouldn’t have been denied lighter duty on the basis of her pregnancy. To the Fourth Circuit and the lower court, that is all the PDA requires.
Young argued that the PDA requires more. If UPS gave lighter duty to those with non-pregnancy-related impairments, Young contends, then it must provide lighter duty to similarly impaired pregnant employees.
This reading of the PDA is consistent with new guidance issued by the Equal Employment Opportunity Commission (EEOC), which states that forcing a pregnant woman to take leave is discriminatory. The new EEOC guidance also incorporates the 2008 amendments to the Americans with Disabilities Act (ADA), which classified certain pregnancy-related conditions as disabilities.
Young’s position is also supported from a plain reading of the PDA, which states in pertinent part:
“[W]omen affected by pregnancy, childbirth or related medical conditions shall be treated the same for all employment-related purposes, including receipt of benefits under fringe benefit programs, as other persons not so affected but similar in their ability or inability to work, …” (my emphasis)
At the Supreme Court
Court watchers were unsure which way the Justices seemed to be leaning at the oral argument on Dec. 3. On the one hand, Justice Elena Kagan was reportedly dogged in her questioning of UPS’ lawyer, Caitlin Halligan . To Justice Kagan, the PDA “was supposed to be about ensuring that [pregnant women] wouldn’t be unfairly excluded from the workplace.” If UPS’ position were to prevail, the core of the PDA would be eviscerated.
Justice Antonin Scalia, on the other hand, accused Young of demanding “most-favored-nation status” for pregnant women. (Justice Ruth Bader Ginsburg shot back that UPS’ position relegated pregnant employees to “least-favored-nation” status.)
Perhaps the most troubling questioning, however, came from Justice Stephen Breyer, a typically principled member of the Court’s liberal wing. Justice Breyer posed perplexing hypotheticals to Young’s lawyer, Michigan law professor Samuel Bagenstos, such as: If a company wants to award “a benefit to a truck driver who has driven over a particularly difficult mountain pass,” does it have to offer this same benefit to pregnant workers? Perhaps Breyer was seizing upon the absurdity of the slippery-slope arguments made in the UPS brief, which, as The Economist noted, included the following: If a “CEO receives company-provided transportation as an accommodation for a back injury,” must the “pregnant mailroom clerk” receive the same transportation because she has “the same physical capacity to work?”
This line of questioning is as ponderous as it is condescending, implying as it does that, if Young were successful, whiny pregnant women all over would start to demand pampering.
Condescension was a theme among those opposed to Young. The Wall Street Journal’s editorial page, for instance, accused “activists” of “holding [the Young v. UPS case] up as a cause celebre of the American sisterhood,” before dropping this knowledge on its readers:
“In the real world, most employers aren’t in the habit of picking fights with their pregnant employees to make their lives miserable. UPS had accommodated Ms. Young during previous pregnancy-related requests, including rounds of in vitro fertilization. We agree with Ms. Young that UPS managers acted like dunderheads when they sent a longtime employee on unpaid leave, but not being nice enough is not the same as discrimination under the law.”
Meanwhile, Young v. UPS has managed to unite women’s rights advocates with pro- and anti-choice groups, all of which are opposed by pro-business groups. (Twenty-three anti-choice groups joined Legal Momentum, previously known as the NOW Legal Defense Fund, and a group of law professors in filing separate amicus briefs to the Court, urging the Justices to adopt Young’s interpretation of the PDA.) The rationale of the anti-choice groups is that “[e]conomic pressure is a significant factor in many women’s decision to choose abortion over childbirth.” Put another way, UPS’ (old) policy makes pregnancy less financially viable for women, which makes abortion correspondingly more likely.
The business community opposes Young because her reading of the PDA would be a purported expansion of Title VII, which would “ramp up the penalties for businesses.” If UPS loses, “Title VII would have a third category of discrimination for which employers could be accused of discrimination even if their policies were neutral.”
The question, then, boils down to this: With which constituency is the conservative majority of the Court more likely to side: the anti-choice, or the pro-business block? We’ll find out next year.
Image credit: Flickr/bayuaditya
 Importantly, in October UPS changed its policy to offer lighter duty “as an accommodation to pregnant employees with lifting or other physical restrictions to the same extent” as those with similar impairments resulting from on-the-job injuries. In other words, exactly what Young was seeking.
 One feels for Halligan, a highly-regarded appellate lawyer (and former colleague of mine). Rather than arguing this case on behalf of UPS, Halligan should currently be a sitting judge on the D.C. Circuit — one of the most important courts in the country. In 2010, President Obama nominated Halligan to fill the seat vacated by Chief Justice Roberts. Yet, Halligan’s nomination never even got a floor vote in the Senate because the Byzantine rules that govern modern Congressional procedure didn’t allow it. (In essence, Republicans, who objected to Halligan’s nomination because of her purported position on guns, were able to block a floor vote five different times because Democrats didn’t have the 60 votes needed to force the vote (what’s called “cloture” in Congressional parlance)).