The United Parcel Service (UPS) announced a change in its policies to allow pregnant workers to stay on the job through their pregnancies in a brief filed late last week in a Supreme Court case brought by one of its former workers.
“On a going-forward basis, UPS has voluntarily decided to provide additional accommodations for pregnancy-related physical limitations as a matter of corporate discretion,” the company states. “UPS’s new policy provides: ‘Light duty work will be provided as an accommodation to pregnant employees with lifting or other physical restrictions to the same extent as such work is available as an accommodation to employees with similar restrictions resulting from on-the-job injuries.’”
The Supreme Court case was brought by Peggy Young, a former employee. While working for the company, she became pregnant and was told by her midwife not to lift more than 20 pounds. Given that her normal duties required lifting boxes as heavy as 70 pounds, she got a note asking UPS to put her on light duty. But although the company gave those with on-the-job injuries, disabilities, or even those who lost their driver’s licenses accommodations so they could keep working, it wouldn’t grant her the change in duties. Young lost her case at the district court level and at the Fourth Circuit Court of Appeals before asking the Supreme Court to weigh in.
While Young or other workers who have brought complaints against the company for pregnancy discrimination won’t benefit from the company’s policy change, current employees will after the policy goes into effect on January 1, 2015. “Any pregnant worker who needs an accommodation now should be treated the same as other UPS workers,” Lenora Lapidus, director of the American Civil Liberties Union Women’s Rights Project, told ThinkProgress.
Lapidus thinks that Young’s case is at least one important catalyst for UPS’s change. “This case has really brought to public light the way in which UPS and other companies are discriminating against women,” she said.
The case is also important for all pregnant employees beyond UPS. “Obviously this will make a huge difference for [UPS] workers,” Lapidus said, “but we need the Supreme Court to issue a ruling about the Pregnancy Discrimination Act [PDA] that would apply to all employers.”
The PDA prohibits employment discrimination against employees on the basis of childbirth, pregnancy, or related conditions who are “similar in their ability, or inability, to work” as their coworkers. Advocates like Emily Martin, vice president and general counsel at the National Women’s Law Center, have argued that means that companies that provide accommodations to workers with other disabilities have to offer the same things to pregnant workers. “The key legal argument in the case is that the Fourth Circuit Court of Appeals just really ignored clear language in the Pregnancy Discrimination Act,” Martin said. “What the PDA says is that you have to treat workers affected by pregnancy the same as you treat those who are similar in their ability to inability to work. So there’s a clear textual argument that the Fourth Circuit was ignoring what the statute said.”
A favorable court ruling “would clarify the law, because a number of lower courts have been getting it wrong,” Lapidus added.
Martin is hopeful that will be the outcome. A focus on the exact words in a given statute “in times has been important even to say Justice [Antonin] Scalia, even in the employment discrimination context,” she explained. “I hope the Court is interested in this because the Fourth Circuit Court of Appeals seemed to be ignoring the clear text of the statute.”
But even absent a positive ruling, other changes may be forcing employers to change the way they treat pregnant employees. While UPS still claims in its brief that the PDA doesn’t require it to change its policy, it does note that state-level legislation mandates it. Nine states have passed Pregnant Worker Fairness Acts that require all employers to give pregnant workers reasonable accommodations, like providing a stool or granting light duty, unless they would impose an undue hardship. The company says the new policy “will aid operational consistency given that a number of States in which UPS operates have relatively recently mandated pregnancy accommodations.”
These state laws may force other employers’ hands. “We see that these state pregnancy accommodation laws enacted recently really have made a tremendous difference,” Lapidus said. “There’s sort of a tipping point that has been reached where now a number of states have passed pregnancy accommodation laws, so companies that operate in multiple states really should…be changing their laws to comply.” A federal Pregnant Workers Fairness Act bill that would cover all workers has been introduced multiple times but hasn’t made progress.
It’s a pressing issue. Eighty percent of first-time mothers work into their last month of pregnancy, but it’s estimated more than a quarter million women are denied their requests for an accommodation. That can lead to women being pushed onto unpaid leave, fired, or even miscarrying their babies.
Young was put onto unpaid leave after UPS denied her request for light duty, which meant she lost income and benefits like health insurance, although she was lucky enough to avoid being fired. Things worked out in the end: “Her pregnancy did end up healthy,” Martin said. “I met her daughter, who is now six or seven and is a charming child.”