If you’re a woman with a physically demanding job and you get pregnant, should your employer make accommodations so you can continue to do your job? What if they already make accommodations for employees who are injured or disabled? Is there a law that says not doing so is illegal? These issues are at the heart of a U.S. Supreme Court case that will be heard on Wednesday, Dec. 3. It involves United Parcel Service and a former delivery driver named Peggy Young.
Young started working at a Maryland UPS center in 1999. In 2002 she became a part-time delivery driver, picking up packages from an airport shuttle and delivering them to homes and businesses before 8:30 a.m. (In the afternoons, she had a second job delivering flowers.) Although UPS required all drivers to be able to “lift, lower, push, pull, leverage and manipulate” packages up to 70 pounds, according to Young’s lawsuit, most of the packages Young delivered were envelopes and lightweight packages, usually weighing no more than 20 lbs.
In 2006, a newly pregnant Young presented UPS with a note from her doctor that said she shouldn’t lift more than 20 lbs. during her pregnancy. Recommendations such as this are fairly common; while there is no hard-and-fast rule against lifting heavy things while pregnant, a woman’s center of gravity shifts, increasing the risk of injury. UPS admits that it regularly puts workers on what it calls “light-duty” work if they’ve been injured on the job. It sometimes does the same for workers who have become ill or injured outside of work, if they’re covered by the Americans with Disabilities Act (ADA). Once, a driver who had suffered a stroke was reassigned to answer phones. On another occasion, a driver who had injured an ankle outside of work was allowed to scan—but not lift—packages.
UPS told Young that it didn’t offer light duty to pregnant workers and that—given her 20 lb. lifting restriction—she couldn’t continue as a driver. The company put her on unpaid leave, during which time she lost her medical coverage. She went back to work two months after giving birth and stayed with UPS until 2009.
On the surface, Young appears to have a pretty solid case. The Pregnancy Discrimination Act, which was passed in 1978, appears designed to guard against her situation. The act guarantees that a pregnant woman (or a woman who has just given birth) “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.” Before it was passed, women often lost their jobs when they became pregnant. (This was especially common in the airline industry, which until the early 1970s also had a habit of firing flight attendants when they married or turned 32.).
“If UPS can accommodate people who can’t lift due to an injury or disability, then according to the [Pregnancy Discrimination Act] they have to accommodate Peggy Young as well,” says Emily Martin, vice president and general counsel at the National Women’s Law Center, which filed an amicus brief on Young’s behalf.
Legally, things are a bit more complicated than that.
UPS’s gender-neutral policy covers employees who are injured on the job, disabled under the Americans With Disabilities Act (ADA), or have lost driving certification. Unfortunately for Young, the ADA doesn’t consider pregnancy a disability. Because of this, Young has lost in lower courts. The U.S. Court of Appeals pointed out (PDF) that a father who injured his back picking up his child wouldn’t be offered light duty and said that to force UPS to offer pregnant women a special arrangement would “imbue the PDA with a preferential treatment mandate that Congress neither intended nor enacted. … the UPS policy at issue is not direct evidence of pregnancy-based sex discrimination.”
That’s certainly one way to look at it. An alternate way is that the Civil Rights Act of 1964 outlaws practices that unintentionally discriminate against someone based on their gender (or race, national origin, or religion). Since only women can become pregnant, it could be argued that the UPS policy unintentionally fails to cover women in a way that it will never fail to cover men.
In a twist, UPS has already announced that starting next year, it will offer light duty assignments to pregnant women. In court the company is still arguing that the old policy was legal. In an e-mail to Bloomberg Businessweek, a UPS spokesperson called the policy “lawful and consistently applied at the time to all employees,” noting that since 2007 several U.S. states have included pregnancy in their disability laws and that the UPS has voluntarily updated its policies to reflect these changing attitudes.
Which way will the Supreme Court go? That depends on whether the court focuses on the narrow definition of whether excluding pregnancy from an otherwise gender-neutral policy is fair, or if it takes the broader view that the Pregnancy Discrimination Act was designed to protect women from being excluded from employment opportunities just because they’re pregnant. If Young wins, the case may open the doors for similar lawsuits; at the United States Postal Service, for example, pregnant employees do not currently qualify for special accommodations. That leads Martin to wonder: “Does the Pregnancy Discrimination Act mean what it says?”