The Supreme Court will hear arguments Wednesday in a case that will decide whether many women must choose between having a job and having a family — or, at least, whether these women must put their jobs and their income on hold during their pregnancy.
Peggy Young began working for the package delivery company UPS in 1999. Three years later, she took a job with the company delivering early morning packages. Then she became pregnant. Because UPS says that its package delivery drivers must be able to lift items “weighing up to 70 pounds,” and because Young’s doctor advised her not to lift packages greater than 20 pounds, the company told her that she could not continue doing her job so long as she was pregnant. As a result, according to Young’s brief before the Supreme Court, “Young was required to go on an extended, unpaid leave of absence, during which she lost her medical coverage.”
There is an important addendum to this story, however. UPS has a policy of assigning “light duty” to certain workers with temporary disabilities, including workers who are injured on the job or those who are entitled to this accommodation under the Americans with Disabilities Act. This matters because the federal Pregnancy Discrimination Act provides that “women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes . . . as other persons not so affected but similar in their ability or inability to work.”
The key words here are “other persons . . . similar in their ability or inability to work.” So if UPS provides “light duty” to a worker injured on the job, and that person has a similar capacity to work as a pregnant woman, then the pregnant woman must be treated the same way as this other worker “for all employment-related purposes.”
Unfortunately for Young, a federal appeals court did not see things that way. According to the United States Court of Appeals for the Fourth Circuit’s decision in this case, UPS’s policy is “pregnancy-neutral.” Though the Fourth Circuit concedes that “an explicit policy excluding pregnant workers would violate antidiscrimination law,” they deny that the law extends to Young’s case. Other courts considering similar cases have been more blunt. One court determined that “[e]mployers can treat pregnant women as badly as they treat similarly affected but nonpregnant employees.”
Indeed, UPS’s brief suggests that this is not even a pregnancy discrimination case at all. Rather, they claim it is a case about whether people with on-the-job injuries can be given accommodations that others are not given, including people who developed medical conditions outside of work. “Because UPS treated petitioner the same as it did other employees with similar lifting restrictions resulting from an off-the-job injury or condition,” the company claims, “UPS did not discriminate against petitioner on account of her pregnancy.” They go on to argue that “petitioner’s reading of the [Pregnancy Discrimination Act] would mandate special treatment for pregnancy.” (It is worth noting that, sometime after they refused a “light duty” assignment to Young, UPS changed its policies so that “pregnant UPS employees will prospectively be eligible for light-duty assignments.)
The weakness in UPS’s argument, however, is that the Pregnancy Discrimination Act does not say that pregnant women shall be treated the same as other people with medical conditions that arose outside of work. It says that such women “shall be treated the same for all employment-related purposes . . . as other persons not so affected but similar in their ability or inability to work.” The question for Peggy Young is whether this statutory language will matter when five jurists that Justice Ruth Bader Ginsburg recently accused of having a “blind spot” in another women’s rights case convene to consider the rights of pregnant women in the workplace.