The Supreme Court on Wednesday weighed how much protection Congress meant to give pregnant workers when they ask for a change in their usual duties because of their condition.
The court tread somewhat gingerly through an hour of technical arguments in the case of Peggy Young of Lorton, a former driver for United Parcel Service (UPS). She charges that the company violated federal law when it refused to temporarily change her duties after a doctor suggested she not lift heavy packages.
Young was forced to take unpaid leave, and she says the company denied her accommodations that non-pregnant workers receive.
The case presents the court with questions about a changing American workplace and how far government and private businesses will go to accommodate the needs of an increasing number of women who work through their pregnancies and serve as the breadwinners for their families.
For the most part, those issues took a back seat to detailed questions about punctuation and ambiguous language in the Pregnancy Discrimination Act of 1978.
But the nature of the discussion changed during a colloquy between Justice Elena Kagan and Caitlin J. Halligan, the New York lawyer representing UPS. Near the end of her turn at the podium, where she was peppered with dozens of questions from Kagan and Justice Ruth Bader Ginsburg, Halligan said the act “sets a floor. That floor is that you can’t single out pregnancy for adverse treatment.”
Beyond that, she said, the democratic process should take hold and states can add additional protection as they see fit, as nine states, including Maryland, already have done.
“Well, Ms. Halligan, for the democratic process to work as it should, the PDA has to be given a fair reading,” Kagan responded. “And what we know about the PDA is that it was supposed to be about removing stereotypes of pregnant women as marginal workers. And what you are saying is that there’s a policy that accommodates some workers, but puts all pregnant women on one side of the line.”
It was unclear from the court’s questioning exactly how the case would come out. Kagan seemed to be searching for some middle ground that would allow Young to continue her lawsuit with specific allegations about the company’s different treatment of workers and allow the company to justify why the workers are treated differently.
Young filed the suit in federal district court in Maryland in 2009 and still has not received a trial. The district court granted summary judgment for UPS, and the U.S. Court of Appeals for the 4th Circuit affirmed.
Except for the extended and at times animated back-and-forth between Kagan and Halligan, the questioning was subdued, especially from the conservative male justices who have ruled against women’s rights groups recently in cases involving workplace discrimination and contraceptives.
Chief Justice John G. Roberts Jr. made only brief comments, and Justice Anthony M. Kennedy’s questions were few. Justices Antonin Scalia and Samuel A. Alito Jr. seemed skeptical that the 1978 act offered all the protection Young claimed.
Young, now 42, worked for UPS in Landover, Md. After becoming pregnant in 2006, she told supervisors that her doctor had recommended she not lift packages heavier than 20 pounds — and later in her pregnancy, 10 pounds. Her early-morning shifts for the most part required her to deliver only letters and small packages, but her supervisor told her that the ability to lift heavier objects was a condition of employment.
Her request for lighter duty was turned down as inconsistent with UPS policy.
Young took an unpaid leave from work, during which time she did not receive medical benefits. She returned after delivering her daughter, Triniti. But she later filed a complaint with the Equal Employment Opportunity Commission, and then sued in federal court. She left UPS in 2009.
Young pointed to the 1978 act, which says that sex discrimination includes discrimination on the basis of “pregnancy, childbirth or related medical conditions.” It also directs employers to treat pregnant employees the same “as other persons not so affected but similar in their ability or inability to work.”
Much of Wednesday’s arguments centered on that second clause. Young said the UPS policy ignored it by denying her request while offering temporary work assignments to those who suffered injuries while on the job, those who had certain disabilities recognized under the Americans with Disabilities Act and those who for certain reasons had lost Department of Transportation certification.
An attorney for Young, University of Michigan law professor Samuel R. Bagenstos, said that Young should have received an accommodation based on her pregnancy that her employer would have given her “if she had sought it for a different medical condition with the same effect on the ability to work.”
Scalia said Young’s argument could amount to granting pregnant workers “most favored nations” status, meaning the company would have to match benefits that any worker received, even those based on seniority or rank in the company.
Bagenstos denied that, and Solicitor General Donald B. Verrilli Jr., representing the federal government in support of Young, said that the PDA was more limited than that.
“We think the one thing an employer can’t do as a result (of the act) is draw distinctions that treat pregnancy-related medical conditions worse than other conditions with comparable effects on ability to work,” Verrilli said. “And so seniority, full-time work, different job classifications, all of those things would be permissible distinctions for an employer to make.”
Verrilli had his own explaining to do. Up until this case, the government had defended the Postal Service, which has essentially the same limitations as UPS on offering accommodations. He said the Obama administration changed its position because the Equal Employment Opportunity Commission now advises employers that they should interpret the law as Young and her supporters do.
For that matter, UPS announced to its employees this fall and in the brief filed at the Supreme Court that it would start offering light duty to pregnant employees beginning Jan. 1.
The case is Young v. United Parcel Service.