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.
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.
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)
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.
"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."
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)).
Trained as a lawyer, I now focus on legal business development, corporate social responsibility (CSR), and business & human rights. My past experience includes work on complex commercial litigation, international human rights advocacy, education policy, pro bono legal representation, and analysis of CSR challenges in both the private and public sectors.