Civil and Human Rights

Pregnant worker’s case to test justices’ ‘blind spot’

By Richard J. Wolf


WASHINGTON — When Peggy Young’s pregnancy discrimination claim against United Parcel Service comes before the Supreme Court Wednesday, the potential implications will be greater for the court itself than for Young or UPS.


Several cases involving gender discrimination and reproductive rights have hit a 5-4 roadblock at the conservative-leaning court under Chief Justice John Roberts. Now groups representing women, workers, employers and others are watching to see how the justices handle the company’s refusal to reassign Young to light duty during her pregnancy.


After last June’s ruling that Hobby Lobby and other employers with religious objections could deny their employees health insurance coverage for contraceptives, Justice Ruth Bader Ginsburg went so far as to suggest her male colleagues had a “blind spot” on the issue.


“This is an important case for the court,” says Brianne Gorod, appellate counsel at the liberal Constitutional Accountability Center. “The Roberts Court has often ignored the realities of the workplace to privilege employers over their female employees.”


The case won’t have a major impact on Young, who left UPS in 2009, three years after the dispute over her pregnancy. And it won’t have a major impact on UPS, which announced a new company policy last month that will provide the type of disability accommodation Young sought eight years ago.


But other employers stand to be affected by the court’s ruling, according to the U.S. Chamber of Commerce, which submitted a brief on UPS’ behalf. The chamber claims a victory by Young would elevate pregnancy above other workplace considerations, ranging from a worker’s education and military record to seniority on the job, and lead to absurd results.


“It would overturn the seniority policies of thousands of American businesses and frustrate the valid goals of these policies,” the chamber said in its brief.


Young was a part-time delivery driver for UPS when she became pregnant in 2006. Her doctor recommended that she not lift packages heavier than 20 pounds, far below the weight drivers were expected to lift if necessary.


The company refused to transfer her to a different job and insisted she take unpaid leave throughout her pregnancy. It said her situation did not meet one of its three criteria for a workplace accommodation — getting injured on the job, having a disability recognized by the Americans with Disabilities Act (ADA), or losing her driver’s certification.


Young cited the Pregnancy Discrimination Act, passed by Congress in 1978, two years after the Supreme Court had refused to equate pregnancy with disability. The law says pregnant workers should be treated equally to those who are “similar in their ability or inability to work.”


Her brief to the court cites a younger Ginsburg, writing in 1977: “Many women become labor-force outcasts upon pregnancy, not by choice, but because of their employers’ preconceptions or prejudices.”


UPS said it treated Young the same as it did other employees with off-the-job injuries or conditions. To do otherwise, the company argued, would be to give pregnancy special treatment — a type of discrimination the law was meant to end.


Young’s side has twice as many supportive briefs before the court, including from the Obama administration and a coalition of 23 anti-abortion organizations. The groups argue that pregnancy accommodations at work help protect women from a loss of income that can lead many to seek abortions.


“Pregnancy is a crucial aspect of human existence, one that warrants at least as much protection as other significant interests,” said Carrie Severino of the conservative Judicial Education Project in her brief for the groups. Before the 1978 law was passed, “women faced with a conflict between the need to work and the fundamental right to bear a child were forced to give up one or the other.”


That argument didn’t convince either of the two lower federal courts who have ruled in UPS’ favor. They said Young didn’t fit any of the three categories UPS used for workplace accommodations in a policy described by one judge as gender-neutral.


Recent years have seen a trend in Young’s favor, however. Congress amended the ADA in 2008 to include pregnancy-related lifting restrictions as a disability. At least nine states now require employers to accommodate pregnant women; similar laws are under review in a half dozen others. And UPS has changed its policy, though it says Young is not entitled to damages.


Still, the case looms as a test for the court’s treatment of women.


Earlier this year, the justices struck down a Massachusetts law requiring 35-foot buffer zones around abortion clinics. In 2011, it denied an effort by female workers at Walmart to file a class-action claim of gender discrimination. In 2007, it said Lily Ledbetter’s pay-discrimination claim against Goodyear Tire & Rubber Co. was filed too late.


Now the court’s decision could set a precedent for pregnant workers across the nation.


“A ruling for Young will ensure that all companies afford pregnant women the same temporary accommodations they provide other employees who are similarly situated in their ability to work,” Gorod says.

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