What Do Employers Owe Pregnant Employees?

Last week the U.S. Supreme Court heard oral argument in a case testing the Pregnancy Discrimination Act of 1978, the federal law that protects working mothers. The trouble is, no one is clear on precisely what that means.

Petitioner Peggy Young was a UPS delivery driver in Maryland when she became pregnant in 2006. Young’s doctor advised her not to lift more than 20 pounds, but UPS refused to offer Young light-duty. The pregnant Young was subsequently placed on unpaid leave and lost her health insurance, when she most needed expensive prenatal care.

To put Young’s predicament in perspective, Ariela Migdal, Senior Staff Attorney with the American Civil Liberties Union’s Women’s Rights Project, emails:

UPS accommodates folks who lose their professional drivers’ license, whether due to DWI or some other reason, and it also accommodates people with disabilities, and people injured at work. That just left pregnant workers [like Young]—they were forced onto unpaid leave instead. . . . The Pregnancy Discrimination Act is supposed to guarantee that if other workers get these kinds of benefits, pregnant workers can too.

Yet courts have held otherwise.

The Supreme Court must now decide: Are employers required to treat pregnant employees like those who receive the most accommodation, or those who receive the least?

As a woman who has twice experienced the pains of pregnancy, I support the former. UPS chose the latter. The Court must now decipher Congress’s initial intentions.

Carrie Severino, chief counsel and policy director of the Judicial Crisis Network, whose group filed an amicus brief supporting Young, believes Congress did not want women to feel forced “to choose between their paycheck and their pregnancy.” Severino adds that if

the employer is able to accommodate some people who, for example, need to sit down rather than stand up during working because of an injury to [their] leg, they can’t then turn around and refuse a pregnant woman’s similar request, which is also based on a temporary medical condition.

Interestingly, the conservative Judicial Crisis Network’s allies in this case include the ACLU, AFL-CIO, and other left-leaning organizations. Their opposition, meanwhile, is another typically conservative constituency, the business community.

Who should families be rooting for in this case? As a mother, I sympathize with Young. Pregnancy can be physically debilitating, but women should be able to work while pregnant for as long as they can safely do so.

It seems absurd that employers wouldn’t accommodate pregnant employees, if they already accommodate others, especially since pregnancy’s temporary changes culminate in a societal benefit: children. Viewed altruistically, employers have the opportunity to support the next generation’s healthy development and families’ growth, strengthening society’s critical building block. Viewed cynically, employers should accommodate pregnant women lest their children develop health problems in utero and become a financial drain on the company and spur absenteeism on the part of employees. After all, it’s simpler to keep working with good employees than to train new ones.

After the last seven years of recession and slow economic growth, the most family-friendly outcome would be a hiring-friendly job climate, enabling parents to provide for their families. So while I hope the Court sides with Young’s interpretation of the law, I would also prefer an emphasis on reasonable accommodations, rather than extensive new regulations.

Pennsylvania’s Senator Robert Casey, Jr., introduced a bill to formalize reasonable accommodations for pregnant women in May 2013. However, the Pregnant Workers Fairness Act remains stalled, lacking any Republican support. Perhaps the publicity surrounding Peggy Young’s case will inspire the new Congress to reconsider the bill, particularly if she loses. If not, states and localities can make their own laws to protect working mothers, as some have already begun to do.

Regardless of the case’s outcome, UPS has already announced that it will offer pregnant workers light-duty starting next month. Kara Ross, Vice President for Global Strategic Communications at UPS, emailed the company’s statement on the case, which explains:

Since 2007, state laws have begun to change. At the time, there was only one state that recognized pregnancy as a disability. Today there are nine states with laws that require some accommodation for pregnant women specifically. Similar laws are pending in six other states and in D.C. Federal regulatory guidance also changed this year. Reflective of these changes and the general work environment, UPS has reviewed its policy and elected to voluntarily change its approach to pregnancy accommodations. The new policy will serve to strengthen UPS’s commitments to supporting women in the workplace and to treating all workers fairly. UPS is actually ahead of many companies and government agencies, including the US Postal Service, in changing its policy to accommodate pregnant workers with special work assignments.

It’s interesting that UPS describes pregnancy as a “disability,” since I had asked Severino about that terminology in our previous correspondence, and she had replied: “Actually, the law doesn't really assume pregnancy is a disability, and that is part of the reason PDA exists.”

Either way, this policy reversal looks like a tacit admission that UPS previously made the wrong judgment, or at least fears the negative publicity they face after treating Young so coldly. After all, mothers ship plenty of packages. This holiday season, we can do so in good conscience.