Splitting the Baby: Why Congressional Action Remains Necessary to Protect Pregnant Workers Even Though the Supreme Court Has Ruled for Peggy Young

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Friday, March 27, 2015

The Supreme Court’s decision in Young v. UPS has several things going for it. Most importantly, it upholds the key principle of the Pregnancy Discrimination Act (PDA) by making it clear that pregnant workers cannot be treated worse than other workers. Consistent with that principle, it precludes employers from unjustifiably excluding pregnant workers under a policy that already accommodates many of their colleagues.

The decision will doubtlessly provide a measure of relief for Peggy Young, who has waged a battle against a policy her employer still insists was “pregnancy-blind” for many years now. As far back as 2005, Ms. Young was forced off her job after asking UPS to accommodate a modest 20-lbs lifting restriction she was under due to pregnancy. UPS’s policy at the time already accommodated several classes of workers, including those with on-the-job injuries and disabled workers. Indeed, the policy even accommodated workers who could not obtain their Department of Transportation clearance due to a drunken driving conviction or arrest. But when it came to Ms. Young, UPS opted to show her the door, telling her that she couldn’t return until she was no longer under a medical restriction.

Both the district court and the Fourth Circuit insisted that UPS’s policy was “pregnancy-blind.” This flawed reasoning was based largely on the idea that it wasn’t just pregnant workers who were left out; on its face, the policy also excluded non-pregnant workers whose limitations didn’t fit categories covered under UPS’s policy. For example, the Supreme Court noted that the policy probably wouldn’t have allowed for accommodations in case of a worker who sustained an injury while volunteering off the job.

The problem? As Legal Momentum pointed out in both of the two briefs it filed in support of Ms. Young, this argument contravenes the plain language of the PDA. It simply can’t be squared with PDA’s clear mandate that pregnant workers be accommodated if other workers, similar in their (in)ability to work, receive accommodations.

Some of the most significant upsides of the decision are:

  • A policy can no longer pass as “pregnancy-blind” just because there may be workers it doesn’t accommodate in addition to pregnant women.
  • Employers who accommodate large segments of the workforce without accommodating pregnant women are now particularly likely to run afoul of the PDA. When analyzing UPS’s policy, the Court pointedly asked “why, when the employer accommodated so many [workers], could it not accommodate pregnant women as well?” This is a key question for UPS to answer on remand. It’s also a key question that companies with similar policies should be asking themselves in light of Young.
  • Despite these positive developments, however, the decision has real limitations. For example, the Young holding may be of little help to women who:
  • Work for employers who do not accommodate anyone;
  • Work for employers who have no written accommodation policies they can reference to define who is or isn’t entitled to an accommodation; and/or,
  • Work in smaller workplaces where the impact of a certain practice isn’t as obvious as it would be in a company as large as UPS. Unlike UPS, many workplaces don’t have a lengthy track record that their pregnant workers can point to in order to show that their employers are leaving them out while accommodating many of their colleagues.

To ensure that all pregnant workers are protected, Congress should enact the federal Pregnant Workers Fairness Act. Under that bill, all employers would need to reasonably accommodate pregnant workers, regardless of whether they choose to accommodate their colleagues.

A clear mandate to accommodate pregnancy in the workplace is far from radical. Laws of jurisdictions as politically diverse as California, West Virginia and New York City already protect pregnant workers’ right to an accommodation. In doing so, they recognize something very fundamental: providing pregnancy-related accommodations is a matter of basic workplace equality. Most of today’s women work—and most of those working women will become pregnant at some point in their lives. Ensuring that they have an affirmative right to a pregnancy accommodation is absolutely essential to fostering an equal playing field - one where their pregnancy cannot be used as an excuse to show them the door as UPS did to Ms. Young.

Contributed by: 

Jelena Kolic