The U.S. Supreme Court is grappling with how employers should treat pregnant workers like Peggy Young, who sued UPS after the parcel company forced her to take unpaid leave rather than accommodate a doctor’s recommendation that Young lift no more than 20 pounds.
It’s a question many other countries settled long ago.
Take Germany. And a law called “Mutterschutz Gesetz,” or “The Maternity Protection Act.”
It works like this: As soon as a woman discovers she’s pregnant, she tells her employer. The employer automatically modifies the workers’ job duties so she can continue to work without harming herself or her pregnancy. Women in physical jobs may be transferred to desk jobs for the during of their pregnancies, for instance, or prohibited from lifting heavy loads.
Then, six weeks before the due date, the pregnant worker goes out on paid leave. That paid leave extends eight weeks after delivery. The worker cannot be fired during her pregnancy and up to four months after delivery. She continues to accrue vacation time during paid leave. And, when she’s ready to return to work, her employer must guarantee her her same job, or a similar one at the same pay.
Peggy Young, meet Berit Rougier.
Rougier, 46, is a physical therapist and the mother of four children who lives in Trebur, just outside of Frankfurt. When she became pregnant with her first child in 1993, she told her employer as soon as she herself found out, at about six weeks. (Many American workers don’t disclose their pregnancy until their third month.)
Her employer modified her work duties, asking that she not work with heavier patients. Rougier voluntarily continued to do so until her belly got in the way, she said.
“If I worked for UPS in Germany, they would have had to give me another job where I wouldn’t have to lift heavy things. Or they’d have had to give me paid leave,” said Rougier, who’s been following Peggy Young’s case, said in a Skype interview. “I think it’s sad that people are under such pressure, and they can’t enjoy being pregnant and having a family, and having a job.”
During another pregnancy, Rougier worked part-time doing administrative work for Mitsubishi Motors, but received all the benefits of a full-time worker. Though she didn’t need work accommodations, she said her bosses continually told her she could go home with pay anytime she wasn’t feeling well – which she never did – and called to ask how she was feeling after the baby was born.
“I’m always happy, when I think of that, that I live in Germany,” she said. “I can have children, and relax, knowing my job is safe, and my money is safe.”
(Just a quick reality break here. Pregnant workers may be protected and accommodated on the job, but other German policies reflect a decided ambivalence about working mothers. Rougier didn’t work through two other pregnancies – something that German law promoted with other programs like Muttergeld and Kindergeld, literally, money for mothers or children, that paid her a monthly allowance. She also stayed home for awhile because Germany, at that time, had no child care facilities for very young children and school released at 1 pm.)
The International Labor Organization recommends that pregnant and nursing workers, should the medical need arise, be given temporary alternative work, transferred to another post or, as a last resort, put on paid leave. And a quick survey of their report, Maternity and Paternity at Work, shows Germany isn’t the only country that does so.
Of 160 countries with information on pregnancy accommodation, 84 provide them: Iceland, France, Ethiopia, the Islamic Republic of Iran. Even in Afghanistan, women are to be routinely assigned to lighter work during the course of their pregnancies, the report noted.
In Bulgaria and Brazil, pregnant workers are transferred if their jobs are deemed to pose a risk to their health. And in Belarus, Bolivia, Bosnia and Herzegovina, Burkina Faso, Chile, Gabon, Italy, Seychelles, South Africa, Uzbekistan and Vietnam, pregnant women who are transferred to lighter duty for medical reasons shouldn’t entail a loss in benefits or pay.
Luxembourg and Portugal give pregnant workers their full pay if no work medically necessary alternatives or accommodations exist and they must go on leave. “In the Dominican Republic and the United States,” the report says, “any such leave is unpaid.”
(And let’s not even mention the ILO recommendation that 14 weeks of paid maternity leave should be the global standard. The United States is the only advanced economy in the world that does not have a paid parental leave policy at all. The Family and Medical Leave Act gives full-time workers who’ve been with a company of over 50 employees for at least a year 12 weeks of unpaid leave. With those stipulations, it doesn’t cover 40 percent of the workforce.)
The ILO report is quick to mention that pregnancy discrimination “is endemic everywhere.” In Croatia, Greece, Italy and Portugal, companies have forced women to sign undated “blank resignations” upon hiring, and then used them to dismiss the women once they became pregnant. In the United Kingdom, human rights officials estimate about 7 percent of pregnant women, or 30,000 per year, lose their jobs due to pregnancy every year.
A poll in Korea revealed one-third of pregnant workers didn’t take maternity leave because they feared discrimination. Pregnancy discrimination complaints are the most common bias complaints in Australia, and have been on the rise in Costa Rica and the Dominican Republic.
In the United States, pregnancy discrimination claims grew by 31 percent between 2005 and 2010, the ILO report said, faster than all other job bias claims. Though pregnant workers are supposed to be treated fairly, the same as other “similarly situated” workers, under the 1978 Pregnancy Discrimination Act, U.S. courts have paid out $150 million in pregnancy- discrimination-related damages since 2001.
And no one has been able to agree on what “similarly situated” means, nor what constitutes fair treatment of pregnant workers.
Peggy Young sued UPS in 2008. Two lower courts have thrown out her case, saying UPS didn’t discriminate when it refused light duty work to Young, but routinely gave it to workers injured on the job, or who had a collective bargaining agreement, because they weren’t “similarly situated” workers. Instead, UPS argues it treated Young fairly by treating her the same as a worker injured off the job, say, mowing the lawn at home.
The Supreme Court, which tread gingerly around the issue during oral arguments Dec. 3, will decide by June whether Young has the right to make her case about what’s fair in a jury trial.