Help on the way for pregnant workers?

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Wednesday, October 9, 2013

Peggy Young had been working at UPS as a truck driver for about five years when her medical team told her she should avoid lifting more than 20 pounds during her pregnancy.  UPS provides temporary “light duty” assignments to many of its workers who need them—those injured on the job, those with permanent physical disabilities, and those who have lost a commercial driver’s license.  The federal Pregnancy Discrimination Act (“PDA”) states that pregnant women must be treated the same as others who are “similar in their ability or inability to work.”  This should have been a piece of cake, right?

Nope.  UPS refuses to give its pregnant employees the same temporary light duty it gives to other employees with temporary disabilities.  This forces its pregnant workers to take extended periods of unpaid leave, during which they lose both their pay and their health insurance.

For the quarter of all American moms who are the sole breadwinners for their families, that just isn’t an option.  Yet poor pregnancy outcomes are particularly associated with certain traditionally female jobs that involve physical work, including restaurant and cafeteria workers, nurses and nursing aides, and janitors/housecleaners.  Simple on-the-job accommodations that don’t present an undue burden on the employer solve this problem and make it possible for women to work longer into their pregnancies.  Legal Momentum has represented a baggage handler, a park police officer, and a firefighter [CBY1] seeking the pregnancy accommodations which their employers already give to some non-pregnant employees. 

Unfortunately, while some courts across the country agree that the PDA helps these employees, many other courts have gotten it wrong.  When Peggy Young sued UPS asking for the light duty that many other UPS employees already got, federal district and circuit courts in Virginia agreed with UPS.  Legal Momentum, along with Hofstra Law School Professor Joanna Lynn Grossman, University of Pittsburgh Law School Professor Deborah Brake, several law professors, and several women’s rights organizations, filed a “friend-of-the-court” brief in May urging the Supremes to re-examine Young, resolve the split between the courts, and protect the rights of pregnant workers. 

Help could be on the way.  On Monday, October 7, the Supreme Court asked the office of the Solicitor General (the top appellate lawyer at the Department of Justice) to weigh in on whether it should accept the case.  This is good news:  According to one study, the Supreme Court is 47 times more likely to agree to hear this type of case when it asks for the views of the Solicitor General.