The justices of the U.S. Supreme Court tussled over the meaning of the 1978 Pregnancy Discrimination Act Wednesday. The issue is whether the law allows companies to suspend pregnant workers, while allowing other workers with temporary disabilities to remain on the job.
In 1976, the Supreme Court ruled that a company that didn't include pregnancy in its disability plan was not discriminating based on gender. The Court said that such a plan was simply omitting coverage for one disability. Congress promptly overruled the Court by passing a law banning discrimination based on pregnancy.
Since then, however, lower courts have disagreed about what the law means.
Enter Peggy Young, a driver who sued the United Parcel Service for suspending both her job and health insurance during her pregnancy. She contends that UPS violated the Pregnancy Discrimination Act, the PDA, by treating pregnant workers differently from other workers with temporary disabilities. Young says she was ready and willing to work, and that her route required her to pick up and deliver mainly envelopes and small packages. But because her doctor recommended she not lift more than 20 pounds, she was laid off for the duration of her pregnancy.
"Peggy Young was seven years old when the Pregnancy Discrimination Act became law," said Young's lawyer Sharon Fast Gustafson on the steps of the Supreme Court. "And here we are 36 years later asking the Court to hold simply that the Pregnancy Discrimination Act means what is says." Namely, that pregnant workers must be treated "the same" as other workers with temporary disabilities. It's an argument that both pro-life and pro-choice groups backed before the Court.
But inside the Supreme Court chamber, conservative justices were not particularly receptive.
"You make it sound as if the only condition that was not accommodated was a lifting restriction because of pregnancy," said Justice Anthony Kennedy, and that's "really giving a misimpression."
Arguing on Young's behalf, University of Michigan law professor Samuel Bagenstos replied that UPS accommodates not just those injured on the job, but large classes of workers with other disabilities, including workers who lose their driving certificates because of injuries and illnesses that take place off the job.
You're calling for "most favored nation treatment," for pregnant employees, Justice Antonin Scalia retorted, meaning if you give a benefit "to any other class of employees" you have to give it to the pregnant worker too.
That prompted Justice Ruth Bader Ginsburg, later on, to remark that the UPS's policy amounted instead to "least favored" status for pregnant workers.
Solicitor General Donald Verrilli, representing the federal government and supporting Young's argument, contended that the law is actually quite narrow. "There's only one thing that an employer can't do," under the PDA, he said, and that is to "treat pregnancy-related medical conditions worse than other conditions" that similarly limit a non-pregnant employee's ability to work.
Verrilli noted that in deciding to protect some classes of people, Congress makes choices, and here the choice was to protect pregnant women. Congress didn't protect everyone who is injured off the job, he said. It chose to protect those with pregnancy-related medical conditions.
UPS has in fact changed its policy on accommodating pregnant workers; the new policy is to begin in January. But the company still defends the old policy. Making that argument was lawyer Caitlin Halligan. She urged the Supreme Court to leave any further refinement of the law to "the democratic process," and she noted that nine states have added protections for pregnant employees.
"For the democratic process to work as it should," shot back Justice Elena Kagan, the Supreme Court has to properly interpret the law. "And what we know about the statute," Kagan said, is that it was "supposed to be ensuring that [pregnant workers] wouldn't be unfairly excluded from the workplace."
Halligan, however, contended that the UPS policy was well within the law. She argued that the company had a "facially neutral policy" that accommodated workers disabled on the job, but did not accommodate "anyone with an injury or condition" sustained off the job.
"The employer will always have a facially neutral policy," countered Justice Stephen Breyer, it just "happens to hit the pregnant women and four other people," and "that's the kind of thing" Congress was "trying to stop in this statute."
Halligan disputed the facts as represented by Young's lawyers. She said it was not true that non-pregnant workers routinely got dispensations for light work when they sustained off-the-job injuries.
"Is there really a dispute," asked Justice Samuel Alito, "that if a UPS driver fell off his all-terrain vehicle" at home on the weekend, he would not get a light-duty accommodation?
Halligan replied that there is no dispute, that the worker would have to take leave.
But in rebuttal, Young's lawyer said that the record shows UPS did in fact make accommodations for employees who sustained sports and other off-the-job accidental injuries, as well as illnesses.
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