International shipping giant UPS for almost a decade has insisted its policy of refusing workplace accommodations for its pregnant employees is not only legal, but sound business policy.
UPS has been so invested in its so-called pregnancy-blind approach to accommodating the temporary health-care needs of its employees that it is defending it all the way to the U.S. Supreme Court in a case the Roberts Court will hear in early December.
So it’s more than a little surprising that UPS announced it would voluntarily abandon its “pregnancy-blind” accommodations policy and would begin next year offering a host of temporary workplace accommodations for its pregnant employers.
Why would UPS suddenly change its policy and decide to start offering the kinds of workplace accommodations the company spent hundreds of thousands of dollars in legal fees to defend? And why announce this change deep in the company’s legal briefing submitted to the Roberts Court if its prior policy was so sound?
Roe is gone. The chaos is just beginning.
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The legal fight over UPS’s treatment of its pregnant workers began in 2006 when Peggy Young, a former employee, became pregnant and was told by her doctor not to lift more than 20 pounds during the first 20 weeks of her pregnancy.
Young approached UPS and requested a light-duty desk assignment as a temporary accommodation for this medical restriction related to her pregnancy. Citing the company’s “pregnancy-blind” policy of giving light-duty job assignments only to people who are injured on the job, those who are disabled under federal disability rights law, or those who have lost their federal driver certification, UPS denied Young’s request.
Because UPS wouldn’t accommodate Young, she was forced to take unpaid leave for the rest of her pregnancy. That meant lost wages and health insurance coverage for Young just a few months prior to the birth of her child.
Young sued, claiming UPS’s policy violated the Pregnancy Discrimination Act (PDA), which requires that employers treat pregnant employees “similar in their ability or inability to work” to non-pregnant employees when deciding accommodations. Young and her attorneys argued that UPS’s “pregnancy-blind” policy violated the law, because by denying Young an accommodation available to other non-pregnant workers, it treated Young differently than her non-pregnant co-workers who were similar to Young in their inability to work.
While Young was litigating her claims, Congress amended another law, the Americans with Disabilities Act (ADA), to require employers to make reasonable accommodations for a broad range of temporary disabilities that would affect Young’s claims in her case. One example would be 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 first sued, there was a question of if, and how, the amendments to the ADA work with the Pregnancy Discrimination Act to require employers accommodate workplace requests like Young’s.
UPS has argued throughout the litigation that its policy is completely non-discriminatory, despite the fact that it results in workers like Young being forced off the job.
According to UPS, “[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 functions of the job as a result of an off-the-job injury or condition.”
The argument sounds like the line of reasoning that infects challenges to affirmative action policies or gender wage gap deniers. Even the name—“pregnancy-blind” policies—is similar to the kind of “post-racial” verbiage the right wing has used to reinforce, rather than dismantle, systematic discrimination.
UPS has looked to the unions for cover in this fight, relying heavily on the fact that its policy was part of the package of benefits collectively bargained for by union representatives. Young is actually arguing for the law to treat pregnancy more favorably than any other protected class covered by other workplace civil rights laws like Title VII, according to UPS.
That’s because, the company has said, in the interpretation of the PDA put forward by Young, federal courts would be able to override the terms of collective bargaining agreements that derive these “pregnancy-blind” policies.
If there’s a problem with UPS’s policy, the company argued, it’s because the union negotiated a bad deal.
On page 24 of its most recent briefing submitted to the Roberts Court, the attorneys for UPS state:
On a going-forward basis, UPS has voluntarily decided to provide additional accommodations for pregnancy-related physical limitations as a matter of corporate discretion. 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.”
Workplace accommodations for pregnant workers often include a stool to sit at a cashier stand, the ability to carry a bottle of water during the workday, and a temporary desk assignment for a few weeks or a couple of months.
Yet getting these kinds of accommodations can still take years of lawsuits, leaving pregnant workers stuck in some kind of Dickensian human resources nightmare of asking for just a little more gruel.
So the fact that UPS has decided to bring an end to that process is indeed a win, especially given many workplaces remain hostile to the needs of its pregnant workers.
In 2012, the Equal Employment Opportunity Commission, the federal agency charged with monitoring and enforcing federal employment laws like the PDA, received nearly 4,000 claims of workplace pregnancy discrimination. Bryce Covert, economic policy editor at ThinkProgress, notes that it is estimated that more than a quarter million women are denied requests for a workplace medical accommodation for their pregnancies, which means this is a big case with big implications for workers beyond UPS.
The economic impact of policies that refuse to accommodate pregnant workers is so great that at least nine states have stepped in to pass legislation like the Pregnant Workers Fairness Act, which requires all employers to give pregnant workers reasonable accommodations unless those accommodations would impose an undue hardship on the employer.
“What we’re seeing at the state level shows importance of the issue of women in the workplace being able to maintain their jobs and benefits during pregnancy,” Lenora Lapidus, director of the ACLU Women’s Rights Project, said in an interview with Rewire. “And it shows the national tide of recognizing the importance of women being able to both maintain their work lives and have healthy pregnancies and be mothers.”
UPS, in its brief to the Roberts Court, indicates this state-level policy change in part drove its decision to amend its workplace pregnancy accommodations policy, stating in its brief that the new policy “will aid operational consistency given that a number of States in which UPS operates have relatively recently mandated pregnancy accommodations.”
UPS insists that the PDA does not require other employers to follow suit, despite this 180-degree turn in its policy.
In other words, UPS has both acknowledged that its previous policy fails to meet many legal standards for not discriminating against pregnant workers while continuing to defend that policy before the Roberts Court.
And that’s the part that should make advocates for pregnant workers wary.
UPS’s brief is littered with arguments tempting to the conservative wing of the Roberts Court that, should they bite, will result in real harm being further ingrained in the law. First is the whole issue of UPS claiming the law allows it to treat its workers the “same” by ignoring pregnancy as a temporary medical condition to accommodate since it’s a condition that didn’t happen on the job.
That faux-objectivism is just the kind of hook that has allowed the Roberts Court to strike down affirmative action policies as racist and ignore coworker harassment.
This case presents an opportunity for Justice Anthony Kennedy and Chief Justice John Roberts to dive into issues of gender stereotyping, gender-neutral leave and accommodation policies, and all the cultural baggage relating to “working mothers” that conservatives carry around.
I’m not looking forward to Justices Samuel Alito and Antonin Scalia weighing in on our cultural assumptions about mothers’ and fathers’ “differential attachments to the labor force.” And I’m braced for a lot of problematic discussions among even some of the liberals on the Court about the way our cultural reverence for pregnancy and new mothers contributes to instances of pregnancy discrimination. I expect we may also miss an opportunity to further delve into the ways race and class inform those preferences and get borne out in the law in determinations of which mothers we defend and accommodate.
“We see this as an opportunity for the Court to make clear that [accommodating pregnant workers like Young] is what the law requires and that employers throughout the country need to apply the same accommodations to pregnant workers as non-workers,” Lapidus said in response to UPS continuing to defend its old policy before the Supreme Court. “We are pleased that UPS belatedly realized the fact that policies that are good for women are good for business.”
Hopefully, the Roberts Court recognizes that as well when they hear arguments in Young v. United Parcel Service this December.