Peggy Young had worked as a driver for UPS for seven years when she took leave to undergo in vitro fertilization procedures. The procedures worked, and she became pregnant. When she returned to work, an occupational health manager from the company told her she had to submit a doctor’s note so that they could make appropriate restrictions to her job responsibilities. She provided a note from her midwife saying that she could not lift more than 20 pounds during while pregnant, and on the basis of that note UPS decided that she could no longer perform the duties required for her job. Further, they said, since it was UPS’s policy not to offer accommodations to pregnant drivers, she would be placed on unpaid leave, suddenly losing both her paycheck and her health insurance at possibly the worst possible time.
Lower courts, including appeals courts, have not been sympathetic to Young’s reading of the Pregnancy Discrimination Act of 1978. For example, the Fourth Circuit stated that the law “does not, despite the urgings of feminist scholars…require an employer to offer maternity leave or take other steps to make it easier for pregnant women to work. Employers can treat pregnant women as badly as they treat similarly affected but nonpregnant employees.”
What the relevant text of the law actually states is that a pregnant woman “shall be treated the same for all employment-related purposes, including receipt of benefits under fringe benefit programs, as other persons not so affected but similar in their ability or inability to work.” In general, then, the law does not enact protections specifically for pregnant women as such; it only says that inability to perform job duties due to pregnancy should be treated the same way as inability to perform job duties for other reasons. If UPS doesn’t have to keep employing someone who becomes unable to work because she injured herself on a non-work-related ski trip, for example, the company can and does argue, then they don’t have to keep employing someone who becomes unable to work because her behavior outside of work led her to be pregnant.
Labeling pregnancy a disability under the Americans with Disabilities Act would have short-circuited this debate, for in that case it would be protected and employers would be required to accommodate it. Instead, well-intentioned lawmakers have left us with a law that does not designate pregnant women as a protected class, but says they are entitled to protection only if their physical limitations are similar to those of a non-pregnant person whom the company would accommodate. One can understand why this reasoning frustrates feminists: it is a short step away from saying that pregnant women are only entitled to protection insofar as a man’s ability to work could be limited in a similar way–to be protected, you have to either be a man, or else be relevantly like some possible man. The people who are pregnant are women, so when our laws disproportionately affect pregnant people they disproportionately affect women, and that frustrates our notions of legal justice. On the other hand, one can also understand why this situation frustrates jurists: justice requires the even-handed application of general rules, and we make exception to a rule only when we can justify doing so by appeal to some other general rule which we have reason to believe should take precedence in a specific type of case. Formulating general rules to address these kinds of cases is, to say the least, tricky.
Because, as the Fourth Circuit noted, the law does not protect pregnant women per se, despite the noble title and evident goals of the Pregnancy Discrimination Act, Ms. Young is forced to make a narrower argument. She points to many cases in which UPS has offered accommodations to men in relevantly similar circumstances to hers–men who required accommodation due to events that happened to them outside of work, and for whom this requirement would be reasonable.
We should mention that Ms. Young’s job almost never required her to lift more than 20 pounds to begin with. UPS could easily have simply provided the accommodations she requested, and indeed they have now changed their policy to do this in the future. The question for the Supreme Court is whether current law requires this.
In the meantime, perhaps we should find a way to put pregnancy under the umbrella of the ADA, or treat pregnant women as a protected class, while avoiding the offensive and silly implication that pregnancy itself is a disability. Surely we as a society have the brain power to accomplish this.
If you believe your employer has discriminated against you based on a pregnancy, please contact The Harman Firm, LLP.