(Note: Advocates for pregnant women will gather in front of the Supreme Court for a rally on Dec. 3, 9:30 – 11:30 a.m. ET Activists elsewhere are encourage to engage in a #StandWithPeggy Virtual Rally, on that day 2 to 3 p.m. ET. See instructions at the end of this article.)
In a country where pregnant women are judged harsher and more negatively than others in the workplace, any law preventing discrimination against them is critical. Unfortunately, one such law is hanging in the balance of a Supreme Court decision on December 3rd. The U.S. Supreme Court in the case of Young v. UPS will determine if employers who offer accommodations for non-pregnant employees are obligated to do the same for pregnant women and, in effect, will demonstrate whether the protections in the Pregnancy Discrimination Act are sufficient to stop employers from discriminating against pregnant employees.
History of Pregnancy Discrimination
The Pregnancy Discrimination Act of 1978 (PDA) brought about significant changes to the way pregnant women were treated in the workforce. Before the bill employers categorically excluded pregnant women from working, or arbitrarily restricted the place, time and nature of their work. The PDA was instrumental in securing more rights for pregnant women, as it prohibited employers from discriminating against employees because of pregnancy, childbirth, or related medical conditions. The assumption inherent in PDA is a right to be treated the same as other employees “not so affected but similar in their ability or inability to work” in regards to all aspects of employment, including hiring, firing, pay, leave policies, and health insurance. The standards applied under PDA are the same as those in the Americans with Disabilities Act (ADA).
Despite the 1978 law, employers are still failing to provide reasonable accommodation for pregnant workers. In too many cases, pregnant women are being forced to take unpaid leave or fired outright. Some women fight back and the number of pregnancy discrimination claims have increased in recent years. In 2011, there were 5,797 pregnancy discrimination charges filed to the U.S. Equal Employment Opportunity Commission (EEOC) under the PDA.
Young v. UPS: Current Litigation
In the present case, Peggy Young was a part-time driver with UPS in 2006 when she became pregnant. Young asked to be given a “light duty assignment”, as she was sometimes required to lift up to 70 pounds, against her doctor’s recommendation. UPS had a policy of accommodating employees unable to keep up with job responsibilities with alternative assignments for a temporary period of time, but UPS denied her request.
Because she was denied such modifications, Young had to take unpaid leave, which prevented her from using her employer-provided medical coverage. She was forced to use inferior health care four times further from home, and lost her right to disability insurance benefits. UPS has a “pregnancy-blind” light duty policy, which outlines the three acceptable reasons for modified assignments: having a qualified disability under the Americans with Disabilities Act (ADA), getting injured on the job, and being legally prohibited from driving. Young’s pregnancy did not fit into any of these categories, and was therefore not considered a reason for light duty reassignment.
Young brought a lawsuit against UPS for denying her a reasonable accommodation, but providing accommodations to others, which she said violated the Pregnancy Discrimination Act (PDA). The lower courts ruled in UPS’s favor, agreeing with the company’s position that its policies are “gender-neutral” and governed by a collective bargaining agreement Young did not qualify for.
This court case translates to a question of whether, and under what circumstances, an employer must accommodate pregnant employees with work limitations who are “similar in their ability or inability to work” as non-pregnant workers that are accommodated. If Peggy Young wins her case, pregnant women with temporary limitations would be treated the same as other workers with similar limitations. If the Supreme Court rules against Young pregnant women will be forced to jeopardize their health and continue working against their doctors’ orders, or lose wages by refusing to continue hazardous work.
Legislative Options for Protection
New legislation is necessary to provide more protection for pregnant workers. In the 2013-2014 Congress, the Pregnant Workers Fairness Act was introduced in both the House and the Senate. The legislation is H.R. 1975 (113th Congress), sponsored by Rep. Jerrold Nadler (D-New York), with 140 co-sponsors and S. 942, sponsored by Sen. Robert Casey (D- Penn.), with 32 co-sponsors. Neither has moved out of committee this Congress, but will likely be re-introduced next Congress (with new bill numbers). The Pregnant Workers Fairness Act would prohibit employers from not making reasonable accommodations for pregnant employees, as well as forcing an employee to take leave instead of providing a needed accommodation. It is obvious with some lower Courts ruling against pregnant women and so many claims before the EEOC, there needs to be corrective legislation to strengthen the PDA and further protect pregnant women from discrimination in the workplace.
NOW activists can show their support of Peggy Young and all pregnant women who work outside of the home by participating in a Virtual Rally on Dec. 3 between 2 and 3 p.m., ET. We suggest that they take a photo of themselves holding the #StandWithPeggy sign and tweet this photo with the hashtag.