Will the Supreme Court Take Up the Issue of Accommodating Pregnant Workers?

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Analysis Law and Policy

Will the Supreme Court Take Up the Issue of Accommodating Pregnant Workers?

Jessica Mason Pieklo

In addition to cases on abortion clinic buffer zones and legislative prayer, the Roberts Court may take up the question of whether, and when, employers must make temporary employment accommodations for pregnant workers.

The previous Supreme Court term wasn’t a good one for workers’ rights. In just one day, the Roberts Court managed to restrict beyond comprehension the meaning of “supervisor” to protect employers from workplace harassment suits, while making it exponentially more difficult for employees to establish a workplace retaliation claim. With the start of the Court’s next term right around the corner, the Roberts Court is considering jumping back into the sea of workplace discrimination claims, this time to answer the question of when, and under what circumstances, employers are required to accommodate pregnant workers.

When data shows that three-quarters of women entering the labor force will be pregnant on the job at some point in their lives, and when pregnancy discrimination is increasingly a problem for low-wage workers, it’s a big topic for the Roberts Court to take on. And it’s one the lower courts have struggled with, despite the seemingly clear statutory language in the Pregnancy Discrimination Act (PDA), as the case of Peggy Young makes clear. Young was a part-time delivery driver for UPS when she became pregnant. After her doctor told her she could lift no more than 20 pounds during the first 20 weeks of her pregnancy, she approached her employer for a light duty assignment as a workplace accommodation. Her employer refused her request.

UPS has what it describes as a “pregnancy-blind” policy of giving light duty assignments to various employees who are physically unable to do their usual job. Under UPS’s policy, employees who had been injured on the job are entitled to light duty assignments, as are employees with a qualifying disability under the Americans With Disabilities Act (ADA) and employees who are injured off the job and fail a Department of Transportation medical exam. Although UPS admits it routinely grants alternative work assignments, including light duty, to other workers, it refuses as a matter of policy to grant those same minor adjustments to pregnant workers like Young. Because UPS’s policy did not recognize light duty assignments for pregnancy-related issues, Young was forced to take unpaid leave for the duration of her pregnancy. As a result, she lost income as well as her medical coverage months prior to the birth of her child.

Young sued, claiming UPS’s refusal to offer her a light-duty assignment as a pregnancy accommodation violated the Pregnancy Discrimination Act. The PDA requires that employers treat pregnant employees “similar in their ability or inability to work” as non-pregnant employees when determining accommodations. According to Young and her attorneys, the law mandates that when employers give a benefit to other workers who are similar to a pregnant worker in their ability or inability to work, employers must give that same benefit to the pregnant worker. UPS disagreed, claiming the company had adopted a pregnancy-blind policy and that Young needed to prove she was denied the accommodation because of bias against her as a pregnant woman. In other words, UPS argued that its policy is not biased against pregnant workers, it’s just that pregnant workers don’t fit into any of its categories of workers entitled to accommodations.

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The district court sided with UPS and ruled the company could adopt pregnancy-blind rules, which allow employees similar to Peggy Young to go on light duty, while blocking Peggy Young from receiving the same accommodation for her pregnancy, without violating the PDA.

Young appealed to the Fourth Circuit Court of Appeals and lost there too. But while the appeals court may have rejected Young’s claims that UPS had violated the PDA, by refusing Young an accommodation but granting similar arrangements to others, it was a qualified rejection. That’s because during the time Young was litigating her claims, Congress amended the Americans With Disabilities Act to require employers to make reasonable accommodations for a broad range of temporary disabilities, including, for example, a back injury that prevents an employee from lifting 20 pounds for a few months. But because those amendments were not in place when Young sued, the Fourth Circuit couldn’t consider their effect on Young’s claim, leaving open the question for the Roberts Court to consider—if, and how, the Americans With Disabilities Act Amendments Act (ADAAA) works with the Pregnancy Discrimination Act to help keep pregnant workers on the job, by making them available for workplace accommodations employers and the courts have been reluctant to provide.

The Americans With Disabilities Act was amended in 2008 in part to address a wide range of workers who suffer from a temporary disability, but, because of the original definition under the original Americans With Disability Act, employers were not required to accommodate those temporary disabilities. Pregnant workers arguably now fall into such a category. Or, because pregnant employees must be treated just as well as others with similar limitations, pregnant workers with lifting restrictions must also be provided reasonable accommodations when an employer can make the adjustments without undue hardship to another worker who would qualify under the ADAAA. That’s the position Young and her advocates are arguing the Supreme Court adopt.

History of the Pregnancy Discrimination Act

The Pregnancy Discrimination Act was, like so much of the law dealing with gendered employment discrimination, a reaction to bad court precedent. Congress first passed the PDA to overturn General Electric v. Gilbert, a 1976 Supreme Court decision that held pregnancy discrimination was not a form of sex discrimination under Title VII of the Civil Rights Act. In Gilbert, the Court upheld an employer’s policy that denied disability benefits during pregnancy leave while granting them for other types of temporary leave. Relying on an earlier Supreme Court decision that held excluding pregnancy from a comprehensive disability insurance program did not violate the Equal Protection Clause, the Court in Gilbert refused to recognize that the exclusion of pregnancy discriminates on the basis of sex.

In response, Congress passed the Pregnancy Discrimination Act, a law whose primary goal was to enable women to stay in the labor force throughout pregnancy and childbirth. The text of the PDA established two forms of protection against discrimination for pregnant women. The first form of protection is found in the first clause of the act, which expressly overruled Gilbert and redefined sex discrimination to include discrimination on the basis of “pregnancy, childbirth, or related medical conditions.” The effect of this clause was to eliminate any employment policy that openly discriminated against pregnant workers or based employment decisions on stereotyped assumptions about their capacity to work.

The second clause of the act, and the one at issue should the Supreme Court decide to take up the case, 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.”

According to workers’ rights advocates, this second clause was designed to remedy a longstanding problem of employer policies that treated pregnancy as a wholly unique unto itself category of existence that, as a result, excluded pregnant women from receiving otherwise generally available benefits. Congress tried to get at these more subtle and discreet methods of discrimination, known in the law as forms of indirect discrimination, by creating a comparison group by which to compare pregnant women—employees “similar in their ability or inability to work”—and directed that these two groups be treated the same “for all employment related purposes.” This second clause provides the only appropriate point of comparison for pregnant and comparably disabled workers when employers must evaluate an accommodation request: their actual ability to perform work.

Peggy Young, the Fourth Circuit, and the Supreme Court

As Young notes in her petition to the Supreme Court, and as reiterated by the amicus brief filed by advocates on her behalf, the Fourth Circuit’s opinion essentially treats pregnancy as a category with no obvious comparison and is exactly the type of legal approach endorsed in Gilbert then later repudiated by Congress when it passed the PDA. More troubling, the Fourth Circuit is not alone in its misread of the PDA. Four other appellate courts have also upheld light-duty policies that accommodate some temporarily disabled employees but refuse accommodations for pregnancy-related disability. However, two federal appellate decisions have struck light-duty policies that excluded pregnant workers. That split in the circuits, and the apparent gap in the statutory protections, make it more likely the Supreme Court will weigh in.

Under the reasoning of the Fourth Circuit and other courts, many of the employees who are now protected under the ADAAA, and who should be comparisons for pregnant women when employers evaluate an accommodation request, will be unavailable, despite their similar ability or inability to work. For example, employers couldn’t consider those employees who receive workplace accommodations because they have a condition wherein they for a short time suffer lower-back pain, an inability to lift heavy objects, or difficulty standing for prolonged periods, despite the fact that the PDA and ADAAA directs them to.

“Under Fourth Circuit’s analysis, as long as an employers policy can be described without reference to pregnancy—by identifying in pregnancy-neutral terms the preferred classes of conditions that are entitled to light-duty accommodations—this approach allows an employer’s accommodation policy itself to defeat any inference of an intent to discriminate against pregnant workers,” Young argues.

Young’s position is that this is a new requirement for the PDA, wrongly borrowed from other employment discrimination cases that do not have the PDA’s express formula for how to compare and evaluate pregnant workers and their accommodation requests with the rest of an employer’s workforce. This new requirement, not supported in the statute, demands plaintiffs demonstrate that pregnancy-based bad will motivated the employer’s failure to accommodate a pregnancy as other types of temporary limitations. And it doesn’t grasp that the failure to accommodate pregnancy as generously as other conditions similarly affecting work is itself based on gender stereotyping. As an amicus brief on Young’s behalf argues:

When an employer refuses to grant light-duty assignment to pregnant workers, while doing so for workers with other conditions affecting ability to work, it treats pregnancy as a unique liability undeserving of accommodation that could allow pregnant women to remain on the job. This judgment devalues pregnant workers’ contributions to paid employment while elevating women’s maternal roles in reproduction and caretaking.

In their amicus brief to the Court, Young’s supporters lean on social science and recent legal theory analyzing labor trends and attitudes around pregnant women in the workplace, in addition to the Equal Employment Opportunity Counsel (EEOC)’s recent strategic plan identifying the more pernicious forms of pregnancy discrimination the agency plans to target. “Our complicated cultural beliefs around pregnancy make finding overt animus a near impossibility,” the amicus argues.

Lingering ambivalence about pregnant employees and new mothers in the work force is masked by an overlay of reverence for pregnancy and motherhood. Pregnancy discrimination may present itself with a glorification of pregnancy and an elevation of women’s maternal roles, something that simultaneously marginalizes women’s contributions as workers.

As Young and her supporters note, in other contexts this kind of gender stereotyping is not allowed. For example, in 2003 the Supreme Court held that employers “peddle in gender stereotypes” when they design family leave policies that are not gender neutral, because those are “inevitably based on presumptions about mothers’ and fathers’ differential attachments to the labor force.” That stereotyping, Young argues, practically guarantees the outcome—women leaving the workforce due to pregnancy-related bias—the PDA was created to eradicate. “Treating some conditions as more compatible with workforce participation and more worthy of employer accommodation is part of the ‘self-fulfilling cycle’ of ‘mutually reinforcing stereotypes’ that promotes ‘stereotypical views about women’s commitments to work and their values as employees,'” argue Young and her advocates.

It’s a compelling argument, but is it one the Roberts Court is willing to hear?

Not if UPS gets its way. UPS argues a variation of the “post-racial” argument the Roberts Court found so compelling in Fisher v. Texas, claiming that “[w]hen petitioner requested an accommodation for her pregnancy-related lifting restriction, UPS treated petitioner in exactly the same way it treats all employees—regardless of pregnancy—who are unable to perform essential junctions of the job as a result of an off-the-job injury or condition.”

UPS goes to great lengths to point out that its policy was the result of an “extensively” negotiated collective bargaining agreement, in part to try and convince the Court to stay out of the case. According to UPS, Young is actually arguing for the Court to treat pregnancy more favorably than any other protected class covered by Title VII, in that the interpretation of the PDA put forward by Young would allow federal courts to override the terms of collective bargaining agreements like UPS’s that derive these pregnancy blind policies. The solution, UPS implies, is not to take another look at the PDA, but for workers to negotiate better deals through their unions.

Those are some tempting arguments for the conservative wing of the Roberts Court to grab hold of in order to protect employers from having to accommodate pregnant workers. But all hope is not lost. In its brief opposing Supreme Court review, UPS concedes that with the ADAAA, the facts of Peggy Young’s case may never be repeated, meaning the legal dispute is essentially moot. It’s an interesting argument from UPS’s perspective, because it is almost an admission of the central dispute here, which is how the law treats pregnant people in the workplace in an inherently different way than all other workers. But, because the ADAAA was not in effect when Peggy Young’s case arose, and because Congress did not make it retroactive, UPS argues it shouldn’t be held to that standard now. Instead, UPS argues, the Supreme Court should wait, pass on taking up this case, and see if a similar situation like Young’s arises again before stepping in to fill the gap between the PDA and the ADAAA.

But asking the Roberts Court to weigh in on protecting pregnant workers from employment discrimination is a risky gambit given its recent record of significantly limiting employee protections, even as the EEOC works to expand them. On the one hand, Young has little option but to ask the Supreme Court to take the case up, given the opinion from the Fourth Circuit. But, as Emily Martin, vice president and general counsel of the National Women’s Law Center, explained to Rewire, the hope is the Court could provide clarity for workers and employers moving forward that the ADAAA has resolved this gap. “The hope is that if the Court takes up the case they can provide a narrow ruling on this issue,” said Martin. “It’s an opportunity to provide some clarity.”

The Supreme Court is scheduled to consider the case during its September 30 conference.