David Abney, who became UPS CEO Sept. 1, 2014, in a 2008 file photo (AP Photo/John Bazemore, File)

 

This week United Parcel Service sent a memo to employees announcing a change in policy for pregnant workers: starting January 1, the company will offer temporary light duty positions not just to workers injured on the job, which is current policy, but to pregnant workers who need it as well.

“UPS takes pride in attaining and maintaining best practices in the area of equal opportunity and employment, and has elected to change our approach to pregnancy accommodations,” a memo sent to workers reads.

Hang on a minute. Isn’t this is the very stance that UPS is arguing against in the upcoming, high-profile Supreme Court case, Young v UPS?

Indeed it is.

UPS’ change of policy was not only announced to its workers on Monday, it was announced to the world in the brief they filed at the Supreme Court just days ago.

The change of policy, UPS attorneys argue in the brief, doesn’t mean they were wrong when they denied temporary light duty to one-time UPS driver Peggy Young, of Landover, Md., when she became pregnant and her doctor recommended she take a hiatus from lifting heavy boxes until after giving birth.

In the brief, UPS attorneys explain it this way: “While UPS’s denial of [Young’s] accommodation request was lawful at the time it was made (and thus cannot give rise to a claim for damages), pregnant UPS employees will prospectively be eligible for light-duty assignments.”

The UPS move came as a surprise to many workers’ rights advocates and to Young’s attorneys.

“UPS is highlighting the injustice of its own position,” said Sam Bagenstos, one of Young’s attorneys. “In the future, they want to give people like her fair treatment. But they’re still denying her recompense for the unfair treatment that they gave her.”

The move, he said, “shows that what Peggy Young has been asking for all along is common sense.”

Young’s supporters say the UPS policy change comes as Young’s case has drawn increasing support from all across the political spectrum, including conservative groups opposed to abortion, like Americans United for Life, business groups, women’s groups, workers’ rights advocates and the left-leaning American Civil Liberties Union.

“This has been a public relations nightmare for UPS,” said Tom Spiggle, an employment attorney and author of a book on pregnancy discrimination, “You’re Pregnant? You’re Fired!”

In their brief, UPS attorneys say the change in policy is the result of new pregnancy accommodation guidelines issued by the Equal Employment Opportunity Commission, and a growing number of states passing pregnant workers’ fairness laws mandating reasonable accommodations – some in unanimous votes.

UPS argues that its change in policy is voluntary, and not required under the Pregnancy Discrimination Act, the federal law at the heart of the Supreme Court case. It will give the company, the world’s largest package delivery service, “operational consistency,” throughout the states.

The Pregnancy Discrimination Act of 1978 was intended to help keep pregnant workers on the job. But different courts have interpreted it in different ways. Should pregnant workers with temporary, pregnancy-related disabilities be treated like those injured on the job and given accommodations? Or, like the workers who threw their backs out mowing the lawn over the weekend, and given none?

Workers’ rights advocates are hoping the Supreme Court will clear up the confusion. Support for a proposed federal Pregnant Workers Fairness bill, which would mandate reasonable accommodations for pregnancy-related medical conditions, has been on hold, advocates say, awaiting the decision.

Emily Martin, vice president and general counsel of the National Women’s Law Center, who filed an amicus brief on behalf of Peggy Young, said the change in UPS policy was as surprising as it was puzzling.

“It undermines every argument that they’ve been making,” she said. “They said they couldn’t give pregnant workers like Peggy Young accommodations because of collective bargaining agreements, and because it would be unduly burdensome. Well, apparently that’s not true anymore.”

For years, as the Young case has wound its way through federal district and circuit courts, UPS has maintained that, under the Pregnancy Discrimination Act, it is legal to only give light duty or other work accommodations to employees injured on the job. And though pregnant workers may temporarily be sidelined from physically demanding jobs with pregnancy-related back trouble, gestational diabetes, carpal tunnel syndrome and other physical ailments, those injuries didn’t happen on the job. So no light duty.

Pregnant workers like Peggy Young at UPS have been expected to either keep doing the heavy lifting, or take leave. At a number of other workplaces, while those injured on the job are given accommodations to keep working, workers with pregnancy-related medical disabilities have been denied water bottles to stay hydrated, stools to help get them off their feet all day, additional bathroom breaks. Some have even been fired, according to a growing number of pregnancy discrimination cases being filed with the EEOC.

Many of the hardest hit workers, EEOC statistics show, are those in low-wage or physically demanding, traditionally male-dominated jobs like construction and law enforcement.

Whatever the Supreme Court ultimately decides, the issue, now moot for future UPS workers, will be far-reaching for other companies, advocates say.

“There are many large companies that do not have pregnancy accommodations, or they’re not in jurisdictions that require it,” said Cynthia Calvert, an attorney with Workforce 21C who advises companies on policies to avoid caregiver discrimination. “UPS did the right thing. And, as a practical matter, they’re doing what many large employers that operate in multiple states should be doing.”

In recent months, Delaware, Illinois, West Virginia, Maryland, Minnesota, New Jersey, New York City, Philadelphia and Providence, Rhode Island have passed laws to ensure pregnant workers receive reasonable accommodations to stay on the job. California and Hawaii already have laws on the books, and bills are pending in several states, including Georgia, Missouri, New York, Pennsylvania, Rhode Island, Wisconsin and the District of Columbia.

To help expecting parents sort through the confusion, A Better Balance, an organization that advocates for working families, is launching an online site this week, babygate.abetterbalance.org, that offers a state-by-state guide to the myriad of federal and state laws and policies.

Supreme Court oral arguments in the Young v. UPS case are set for December 3.