The Supreme Court Could Soon Make Life Harder for Pregnant Women

During her pregnancy, Patricia Young's health care provider considered the question of whether she should lift heavy boxes and said no. Young asked UPS for an alternative assignment until after she gave birth, and they turned her down. (The company has since changed its policy.)
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This holiday season, when you pick up another box of heavy gifts left at your doorway by a delivery person, ask yourself: Should a pregnant woman lift this?

The Supreme Court will be asking itself a related question in early December when it considers the biggest test of the federal Pregnancy Discrimination Act in a generation.

The Young vs. United Parcel Service case, which has attracted little attention outside of legal circles so far, involves a woman who delivered packages just like the ones on your doorstep.

During her pregnancy, Peggy Young's health care provider considered the question of whether she should lift heavy boxes and said no. Young asked UPS for an alternative assignment until after she gave birth, and they turned her down. (The company has since changed its policy.)

The Supreme Court will now take a stab at the question, and I predict that pregnant women are not going to like the Court's answer.

Here's a quick guide to understanding the case, which will be argued on Dec. 3. (You can find all of the related court documents at Scotusblog.)

What happened at UPS?

Young helped sort and deliver mail for United Parcel Service. When she got pregnant, her doctor sent a note to her employer saying that that she could not lift over 20 pounds during her pregnancy. One of the requirements for Young's job was that she be able to lift at least 70 pounds, so Young requested a light-duty assignment. UPS said no, noting that company policy only allowed light-duty assignments for those with workplace related issues and other limited circumstances. Because UPS did not consider pregnancy to be like a workplace-related injury, Young was not eligible to work until she could work without restriction.

What is the legal fight about?

There was no strong evidence in the case that UPS had any desire to discriminate against pregnant women. It was just sticking to company policy. Young would have been eligible for a light-duty assignment if she had been injured at work.

The primary, and narrow, issue in the case is whether the company's policy violated the Pregnancy Discrimination Act by excluding pregnant women not injured on the job from light-duty assignments.

Young argues that it does because the law explicitly says that a company must treat pregnant women the same as other workers who are similar in their "ability or inability to work." Young is saying: Look UPS, I'm no different than the guy who pulled his back at work, who for the next six months needs a desk job, which you gave him. Like the law says, I am similar in my "inability to work." Thus, under the Pregnancy Discrimination Act, I have to be treated the same as him and given a temporary light-duty assignment. Otherwise, pregnant women, who not uncommonly have physical limitations during pregnancy, will be forced out of their jobs when the simple step of giving them light-duty assignments would allow them to keep working, thus allowing those needed paychecks and health coverage to keeping coming.

Not so, says UPS. It claims that the Pregnancy Discrimination Act only amended the existing law prohibiting sex discrimination. Because company policy makes no distinction on the basis of pregnancy, just like it makes no distinction on the basis of sex -- that is, it is "pregnancy blind" -- the policy does not violate the law. UPS argues that Young's interpretation of the law makes no sense because it would require the company to treat pregnant women better than other women. If Young had her way, UPS would be required to give her a light-duty assignment, but could lawfully deny a light-duty assignment to another woman injured off the job when picking up her young child. This would give pregnant women "most favored nation" status at the expense of other workers, including female workers. This cannot be what Congress intended when it passed the Pregnancy Discrimination Act, UPS reasons.

(Interestingly, UPS has since changed its policy and now offers light-duty assignments to pregnant employees. But it is sticking to its argument that it was lawful to deny Young a light-duty assignment at the time.)

The Supreme Court's job will be to decide who is right.

Why does the case matter?

Young vs. UPS is important for the average working pregnant woman. If the Court decides in favor of Young it means that many employers -- particularly large ones -- would have to offer accommodations, like light-duty assignments, to all pregnant employees, if they offer them at all. That will eliminate many of the ridiculous stories you read about where a pregnant woman is fired just because she asked for some minor and temporary change at work.

If the Court finds in favor of UPS (and I predict it will, given that the Roberts Court has tended to line up in favor of business interests where employment matters are concerned), then a pregnant woman requiring a change at work to help her keep working during pregnancy will have to show that she is covered by the Americans with Disabilities Act. This is now easier to do, since that law was amended in 2009, but not all women will be covered, and even those that are will have to formally request a workplace "accommodation," which can be a difficult step.

What does this case mean for you?

This case will focus attention on pregnancy discrimination, and that's a good thing. But regardless of which "team wins," many protections will remain unchanged. No matter what the headline reads when the Supreme Court issues its opinion, if you're pregnant you can count on the items below.

Many small businesses will be unaffected. The Pregnancy Discrimination Act does not cover employers with fewer than 15 employees. If you work for a mom-and-pop shop, your situation will not be directly affected by this case. In states and cities that do not make pregnancy discrimination illegal (and there are many), employers, within reason, can hire and fire based on pregnancy. They will continue to be able to do so lawfully no matter what the outcome in Young. States and localities with laws barring pregnancy discrimination will not be affected.

Intentional discrimination will still be illegal. Discrimination on the basis of pregnancy by employees with 15 or more employees will remain unlawful. No one in Young v. UPS is arguing that is lawful to intentionally discriminate against pregnant employees. So, no matter how the Supreme Court decides Young, if your boss at Large Company, Inc. fires you saying "This just isn't a place for a pregnant lady," that will remain illegal.

The Americans with Disabilities Act will still help.Employers must provide workplace changes -- like light duty assignments -- to employees covered by the Americans with Disabilities Act, even if those disabilities arise from pregnancy. (Like the Pregnancy Discrimination Act, the Americans with Disabilities Act only covers employers with 15 or more employees.)

Retaliation is still illegal. Employers cannot retaliate against a person for asserting rights under the Pregnancy Discrimination Act -- even if he or she is wrong about them. The decision in Young will not change that.

Pregnant women still qualify for unpaid leave. Employer with 50 or more employees will still have to provide up to 12 weeks (alas, paid leave not required) for childbirth and bonding.

Changing pregnant women's benefits will still be illegal. It will remain illegal for an employer to alter a pregnant worker's benefits because they might increase the employer's coverage costs.

Caregiver discrimination. The laws protecting woman (and men) after baby arrives will not be directly affected by this decision. For more information on these laws, check out Worklife Law.

The accommodation issue for pregnant workers would, in large part, be eliminated if Congress passed the Pregnant Woman's Fairness Act. This law would require employers with 15 or more employees to provide reasonable workplace changes to pregnant workers whether or not they are covered by the Americans for Disabilities Act. If anything, Young vs. UPS highlights the need for such a law. It is possible that a defeat at the Supreme Court would result in renewed support for the Pregnant Woman's Fairness Act, which is currently languishing in Congress.

For more information on Young vs. UPS and pregnancy discrimination, visit the websites of these organizations.

Regardless of the outcome, Young has been a win for pregnant women because it focuses attention on pregnancy discrimination, which, sadly, continues to be a problem over thirty years after Congress passed the Pregnancy Discrimination Act. While the outcome will have some important practical ramifications for working pregnant women, many of the law's protections and related laws will remain in place even if the Court rules against Young.

Tom Spiggle is author of the new book "You're Pregnant? You're Fired: Protecting Mothers, Fathers, and Other Caregivers in the Workplace," now available on Amazon. He is founder of the Spiggle Law Firm based in Arlington, Va., where he focuses on workplace law specializing in helping clients facing discrimination due to pregnancy or other family-care issues, such as caring for a sick child or elderly parent. This is Spiggle's first book. To learn more, visit:

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