Cross-posted from ACSLaw’s blog

On Wednesday, the Supreme Court delivered an important victory for pregnant workers [PDF] when in a 6-3 ruling it revived Peggy Young’s pregnancy discrimination case against UPS and sent it back to the lower courts for further proceedings. In so ruling, the Supreme Court declined UPS’s invitation to read a key piece of the Pregnancy Discrimination Act completely out of the statute books. This decision should put employers on notice that when they exclude pregnant workers with medical needs from accommodations that they make for workers with disabilities or injuries, they do so at their legal peril. Nevertheless, the Court’s decision also requires a somewhat unpredictable and fact-intensive analysis of these sorts of pregnancy discrimination claims. As a result, individual pregnant women may still face real uncertainty as to their workplace rights, and individual employers may choose to take their chances in litigation rather than promptly providing accommodations to women who need them. Congress should act now to affirm and strengthen this decision, to ensure that no pregnant woman is forced to choose between her job and the health of her pregnancy.

Peggy Young’s case arose more than seven years ago, when she became pregnant while working as a UPS driver. Her doctor recommended that she avoid lifting more than 20 pounds during her pregnancy. When UPS learned of this restriction, it refused to let her continue to do her job, even though in fact she only rarely did any heavy lifting. UPS also refused to give her a light duty assignment, even though it provided such accommodations to drivers with on-the-job injuries, drivers with disabilities as defined in the Americans with Disabilities Act, and drivers who had lost their commercial driver’s licenses for health reasons or other reasons—including DUI convictions. As a result, Peggy Young was forced onto unpaid leave for the duration of her pregnancy, and lost her UPS-provided health insurance. She sued, arguing that UPS had violated the Pregnancy Discrimination Act (PDA) when it refused to provide her the same sorts of accommodations it provided to others. But despite the clear language of the PDA requiring employers to treat pregnant workers the same as those “similar in ability or inability to work,” she lost in the lower courts, which held that UPS’s accommodation rules were “pregnancy blind” and thus did not violate the law.

In an opinion [PDF] written by Justice Breyer and joined by Justices Roberts, Ginsburg, Kagan, and Sotomayor, the Supreme Court disagreed. (Justice Alito agreed with the result, but in a separate opinion with a different rationale.) The Court emphasized that an employer who accommodates nonpregnant workers who are similar to pregnant workers in ability to work cannot justify a refusal to accommodate pregnant workers too based merely on a claim that it is too expensive or inconvenient to do so. Moreover, even if an employer offers some other apparently legitimate reason for refusing to accommodate pregnancy, the employer will still violate the PDA if the employer’s accommodation rules impose a significant burden on pregnant workers—for example, if the employer accommodates a large percentage of nonpregnant workers with physical limitations while failing to accommodate a large percentage of pregnant workers with physical limitations—that outweigh the offered justification. In other words, the Court said to employers, if you manage to accommodate most employees with physical limitations who aren’t pregnant, any claim that you can’t accommodate physical limitations arising out of pregnancy starts to look pretty suspicious.

Because of the Supreme Court’s decision, fewer women will be pushed out of work because they are pregnant . Fewer families will lose income just when they need it the most to prepare for a new baby. More employers will treat medical needs arising out of pregnancy just like they treat medical needs arising out of disabilities and provide reasonable accommodations as a matter of course. But some women who are treated like Peggy Young was will look around their workplace and be unsure whether the employer is violating the law or not. Is her employer accommodating most nonpregnant workers who need it, or is it treating everyone badly? Is her employer refusing to accommodate most pregnant workers, or just her? These are questions an individual employee might well not know the answer to—and if she has an immediate medical need for an accommodation, she might not have the luxury of time to investigate and try to figure it out. When you don’t know exactly what your rights are, it is very hard to enforce them. And when employers are not completely sure what their obligations are, disputes and litigation often ensue. Sometimes, as Peggy Young could tell you, years go by before a court provides a clear answer.

The Pregnant Workers Fairness Act, which will soon be reintroduced in Congress, would provide that needed clarity, to workers and to employers. It would set out a simple and unmistakable rule: employers must provide reasonable accommodations for limitations arising out of pregnancy, unless doing so would pose an undue hardship. A pregnant worker’s rights wouldn’t depend on how others in the workplace had been treated—or on what evidence she could collect about how others in the workplace had been treated. The only relevant question would be whether an employer could reasonably accommodate whatever her physical limitation was. States and cities across the country have been adopting similar laws, on a bipartisan and often unanimous basis, recognizing that this is a commonsense solution to a real need.  Congress should do the same.

Interestingly, Justice Kennedy, who would have ruled against Peggy Young, praised these state accommodation laws in his dissent, stating that they “honor and safeguard the important contributions women make to both the workplace and the American family.” After acknowledging that pregnant workers “may find it difficult to continue to work, at least in their regular assignment, while still taking necessary steps to avoid risks to their health and the health of their future children,” he called the “difficulties pregnant women face in the workplace . . . an issue of national importance.” It sounds almost like a call for Congress to pass the Pregnant Workers Fairness Act. And yesterday, the Senate unanimously approved a nonbinding budget resolution to provide pregnant workers with a right to workplace accommodations. These are clear signs of momentum for fairness for pregnant workers, rippling through state legislatures, through the Supreme Court, and now on to Congress. Now it’s time to ensure once and for all that the days of pushing pregnant women out of work are over.

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