Analysis Law and Policy

Will the Supreme Court Take Up the Issue of Accommodating Pregnant Workers?

Jessica Mason Pieklo

In addition to cases on abortion clinic buffer zones and legislative prayer, the Roberts Court may take up the question of whether, and when, employers must make temporary employment accommodations for pregnant workers.

The previous Supreme Court term wasn’t a good one for workers’ rights. In just one day, the Roberts Court managed to restrict beyond comprehension the meaning of “supervisor” to protect employers from workplace harassment suits, while making it exponentially more difficult for employees to establish a workplace retaliation claim. With the start of the Court’s next term right around the corner, the Roberts Court is considering jumping back into the sea of workplace discrimination claims, this time to answer the question of when, and under what circumstances, employers are required to accommodate pregnant workers.

When data shows that three-quarters of women entering the labor force will be pregnant on the job at some point in their lives, and when pregnancy discrimination is increasingly a problem for low-wage workers, it’s a big topic for the Roberts Court to take on. And it’s one the lower courts have struggled with, despite the seemingly clear statutory language in the Pregnancy Discrimination Act (PDA), as the case of Peggy Young makes clear. Young was a part-time delivery driver for UPS when she became pregnant. After her doctor told her she could lift no more than 20 pounds during the first 20 weeks of her pregnancy, she approached her employer for a light duty assignment as a workplace accommodation. Her employer refused her request.

UPS has what it describes as a “pregnancy-blind” policy of giving light duty assignments to various employees who are physically unable to do their usual job. Under UPS’s policy, employees who had been injured on the job are entitled to light duty assignments, as are employees with a qualifying disability under the Americans With Disabilities Act (ADA) and employees who are injured off the job and fail a Department of Transportation medical exam. Although UPS admits it routinely grants alternative work assignments, including light duty, to other workers, it refuses as a matter of policy to grant those same minor adjustments to pregnant workers like Young. Because UPS’s policy did not recognize light duty assignments for pregnancy-related issues, Young was forced to take unpaid leave for the duration of her pregnancy. As a result, she lost income as well as her medical coverage months prior to the birth of her child.

Young sued, claiming UPS’s refusal to offer her a light-duty assignment as a pregnancy accommodation violated the Pregnancy Discrimination Act. The PDA requires that employers treat pregnant employees “similar in their ability or inability to work” as non-pregnant employees when determining accommodations. According to Young and her attorneys, the law mandates that when employers give a benefit to other workers who are similar to a pregnant worker in their ability or inability to work, employers must give that same benefit to the pregnant worker. UPS disagreed, claiming the company had adopted a pregnancy-blind policy and that Young needed to prove she was denied the accommodation because of bias against her as a pregnant woman. In other words, UPS argued that its policy is not biased against pregnant workers, it’s just that pregnant workers don’t fit into any of its categories of workers entitled to accommodations.

Like This Story?

Your $10 tax-deductible contribution helps support our research, reporting, and analysis.

Donate Now

The district court sided with UPS and ruled the company could adopt pregnancy-blind rules, which allow employees similar to Peggy Young to go on light duty, while blocking Peggy Young from receiving the same accommodation for her pregnancy, without violating the PDA.

Young appealed to the Fourth Circuit Court of Appeals and lost there too. But while the appeals court may have rejected Young’s claims that UPS had violated the PDA, by refusing Young an accommodation but granting similar arrangements to others, it was a qualified rejection. That’s because during the time Young was litigating her claims, Congress amended the Americans With Disabilities Act to require employers to make reasonable accommodations for a broad range of temporary disabilities, including, for example, a back injury that prevents an employee from lifting 20 pounds for a few months. But because those amendments were not in place when Young sued, the Fourth Circuit couldn’t consider their effect on Young’s claim, leaving open the question for the Roberts Court to consider—if, and how, the Americans With Disabilities Act Amendments Act (ADAAA) works with the Pregnancy Discrimination Act to help keep pregnant workers on the job, by making them available for workplace accommodations employers and the courts have been reluctant to provide.

The Americans With Disabilities Act was amended in 2008 in part to address a wide range of workers who suffer from a temporary disability, but, because of the original definition under the original Americans With Disability Act, employers were not required to accommodate those temporary disabilities. Pregnant workers arguably now fall into such a category. Or, because pregnant employees must be treated just as well as others with similar limitations, pregnant workers with lifting restrictions must also be provided reasonable accommodations when an employer can make the adjustments without undue hardship to another worker who would qualify under the ADAAA. That’s the position Young and her advocates are arguing the Supreme Court adopt.

History of the Pregnancy Discrimination Act

The Pregnancy Discrimination Act was, like so much of the law dealing with gendered employment discrimination, a reaction to bad court precedent. Congress first passed the PDA to overturn General Electric v. Gilbert, a 1976 Supreme Court decision that held pregnancy discrimination was not a form of sex discrimination under Title VII of the Civil Rights Act. In Gilbert, the Court upheld an employer’s policy that denied disability benefits during pregnancy leave while granting them for other types of temporary leave. Relying on an earlier Supreme Court decision that held excluding pregnancy from a comprehensive disability insurance program did not violate the Equal Protection Clause, the Court in Gilbert refused to recognize that the exclusion of pregnancy discriminates on the basis of sex.

In response, Congress passed the Pregnancy Discrimination Act, a law whose primary goal was to enable women to stay in the labor force throughout pregnancy and childbirth. The text of the PDA established two forms of protection against discrimination for pregnant women. The first form of protection is found in the first clause of the act, which expressly overruled Gilbert and redefined sex discrimination to include discrimination on the basis of “pregnancy, childbirth, or related medical conditions.” The effect of this clause was to eliminate any employment policy that openly discriminated against pregnant workers or based employment decisions on stereotyped assumptions about their capacity to work.

The second clause of the act, and the one at issue should the Supreme Court decide to take up the case, provides that “women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes … as other persons not so affected but similar in their ability or inability to work.”

According to workers’ rights advocates, this second clause was designed to remedy a longstanding problem of employer policies that treated pregnancy as a wholly unique unto itself category of existence that, as a result, excluded pregnant women from receiving otherwise generally available benefits. Congress tried to get at these more subtle and discreet methods of discrimination, known in the law as forms of indirect discrimination, by creating a comparison group by which to compare pregnant women—employees “similar in their ability or inability to work”—and directed that these two groups be treated the same “for all employment related purposes.” This second clause provides the only appropriate point of comparison for pregnant and comparably disabled workers when employers must evaluate an accommodation request: their actual ability to perform work.

Peggy Young, the Fourth Circuit, and the Supreme Court

As Young notes in her petition to the Supreme Court, and as reiterated by the amicus brief filed by advocates on her behalf, the Fourth Circuit’s opinion essentially treats pregnancy as a category with no obvious comparison and is exactly the type of legal approach endorsed in Gilbert then later repudiated by Congress when it passed the PDA. More troubling, the Fourth Circuit is not alone in its misread of the PDA. Four other appellate courts have also upheld light-duty policies that accommodate some temporarily disabled employees but refuse accommodations for pregnancy-related disability. However, two federal appellate decisions have struck light-duty policies that excluded pregnant workers. That split in the circuits, and the apparent gap in the statutory protections, make it more likely the Supreme Court will weigh in.

Under the reasoning of the Fourth Circuit and other courts, many of the employees who are now protected under the ADAAA, and who should be comparisons for pregnant women when employers evaluate an accommodation request, will be unavailable, despite their similar ability or inability to work. For example, employers couldn’t consider those employees who receive workplace accommodations because they have a condition wherein they for a short time suffer lower-back pain, an inability to lift heavy objects, or difficulty standing for prolonged periods, despite the fact that the PDA and ADAAA directs them to.

“Under Fourth Circuit’s analysis, as long as an employers policy can be described without reference to pregnancy—by identifying in pregnancy-neutral terms the preferred classes of conditions that are entitled to light-duty accommodations—this approach allows an employer’s accommodation policy itself to defeat any inference of an intent to discriminate against pregnant workers,” Young argues.

Young’s position is that this is a new requirement for the PDA, wrongly borrowed from other employment discrimination cases that do not have the PDA’s express formula for how to compare and evaluate pregnant workers and their accommodation requests with the rest of an employer’s workforce. This new requirement, not supported in the statute, demands plaintiffs demonstrate that pregnancy-based bad will motivated the employer’s failure to accommodate a pregnancy as other types of temporary limitations. And it doesn’t grasp that the failure to accommodate pregnancy as generously as other conditions similarly affecting work is itself based on gender stereotyping. As an amicus brief on Young’s behalf argues:

When an employer refuses to grant light-duty assignment to pregnant workers, while doing so for workers with other conditions affecting ability to work, it treats pregnancy as a unique liability undeserving of accommodation that could allow pregnant women to remain on the job. This judgment devalues pregnant workers’ contributions to paid employment while elevating women’s maternal roles in reproduction and caretaking.

In their amicus brief to the Court, Young’s supporters lean on social science and recent legal theory analyzing labor trends and attitudes around pregnant women in the workplace, in addition to the Equal Employment Opportunity Counsel (EEOC)’s recent strategic plan identifying the more pernicious forms of pregnancy discrimination the agency plans to target. “Our complicated cultural beliefs around pregnancy make finding overt animus a near impossibility,” the amicus argues.

Lingering ambivalence about pregnant employees and new mothers in the work force is masked by an overlay of reverence for pregnancy and motherhood. Pregnancy discrimination may present itself with a glorification of pregnancy and an elevation of women’s maternal roles, something that simultaneously marginalizes women’s contributions as workers.

As Young and her supporters note, in other contexts this kind of gender stereotyping is not allowed. For example, in 2003 the Supreme Court held that employers “peddle in gender stereotypes” when they design family leave policies that are not gender neutral, because those are “inevitably based on presumptions about mothers’ and fathers’ differential attachments to the labor force.” That stereotyping, Young argues, practically guarantees the outcome—women leaving the workforce due to pregnancy-related bias—the PDA was created to eradicate. “Treating some conditions as more compatible with workforce participation and more worthy of employer accommodation is part of the ‘self-fulfilling cycle’ of ‘mutually reinforcing stereotypes’ that promotes ‘stereotypical views about women’s commitments to work and their values as employees,'” argue Young and her advocates.

It’s a compelling argument, but is it one the Roberts Court is willing to hear?

Not if UPS gets its way. UPS argues a variation of the “post-racial” argument the Roberts Court found so compelling in Fisher v. Texas, claiming that “[w]hen petitioner requested an accommodation for her pregnancy-related lifting restriction, UPS treated petitioner in exactly the same way it treats all employees—regardless of pregnancy—who are unable to perform essential junctions of the job as a result of an off-the-job injury or condition.”

UPS goes to great lengths to point out that its policy was the result of an “extensively” negotiated collective bargaining agreement, in part to try and convince the Court to stay out of the case. According to UPS, Young is actually arguing for the Court to treat pregnancy more favorably than any other protected class covered by Title VII, in that the interpretation of the PDA put forward by Young would allow federal courts to override the terms of collective bargaining agreements like UPS’s that derive these pregnancy blind policies. The solution, UPS implies, is not to take another look at the PDA, but for workers to negotiate better deals through their unions.

Those are some tempting arguments for the conservative wing of the Roberts Court to grab hold of in order to protect employers from having to accommodate pregnant workers. But all hope is not lost. In its brief opposing Supreme Court review, UPS concedes that with the ADAAA, the facts of Peggy Young’s case may never be repeated, meaning the legal dispute is essentially moot. It’s an interesting argument from UPS’s perspective, because it is almost an admission of the central dispute here, which is how the law treats pregnant people in the workplace in an inherently different way than all other workers. But, because the ADAAA was not in effect when Peggy Young’s case arose, and because Congress did not make it retroactive, UPS argues it shouldn’t be held to that standard now. Instead, UPS argues, the Supreme Court should wait, pass on taking up this case, and see if a similar situation like Young’s arises again before stepping in to fill the gap between the PDA and the ADAAA.

But asking the Roberts Court to weigh in on protecting pregnant workers from employment discrimination is a risky gambit given its recent record of significantly limiting employee protections, even as the EEOC works to expand them. On the one hand, Young has little option but to ask the Supreme Court to take the case up, given the opinion from the Fourth Circuit. But, as Emily Martin, vice president and general counsel of the National Women’s Law Center, explained to Rewire, the hope is the Court could provide clarity for workers and employers moving forward that the ADAAA has resolved this gap. “The hope is that if the Court takes up the case they can provide a narrow ruling on this issue,” said Martin. “It’s an opportunity to provide some clarity.”

The Supreme Court is scheduled to consider the case during its September 30 conference.

Commentary Law and Policy

Republicans Make History in Obstructing Merrick Garland for Supreme Court

Jessica Mason Pieklo

Merrick Garland is now officially the longest Supreme Court nominee to go without confirmation hearings or a vote in U.S. history.

Merrick Garland, President Obama’s selection to replace Justice Antonin Scalia, now has the dubious distinction of being the longest U.S. Supreme Court nominee ever to go without a vote to confirm or reject his appointment, thanks to Senate Republicans’ refusal to do their jobs.

I can’t say it any differently. This has been an utter, total failure by grown men, and a few women, in the Senate to do the kind of thing they’re supposed to in exchange for getting paid by the rest of us. And after nearly a decade of unprecedented—and I mean unprecedentedobstruction of President Obama’s judicial nominees writ large, there’s no flowery language that can capture how our federal courts’ slow burn on the the Republicans’ watch has now caught full fire with the fight over Garland’s nomination.

Instead what we have are dry, hard facts. A century ago, Justice Louis Brandeis was forced to wait 125 days before his confirmation to become the first Jewish justice on the Court. Justice Scalia died on February 13 of this year. President Obama nominated Garland on March 16. Wednesday marked 126 days of zero Senate action on that nomination.

And since Congress is now on recess, that won’t be changing anytime soon.

Like This Story?

Your $10 tax-deductible contribution helps support our research, reporting, and analysis.

Donate Now

It’s not just that the Senate hasn’t held a vote. They have held no hearings. Several senators have refused to meet with Garland. They have taken. No. Action. Not a bit. And here’s the kicker: None of us should be surprised.

President Obama had no sooner walked off the Rose Garden lawn after announcing Garland’s nomination in March than Senate Republicans announced their plan to sit on it until after the presidential election. Eight months away. In November.

Senate Republicans’ objection isn’t to Garland himself. He’s a moderate who has generally received bipartisan praise and support throughout his career and should, on any other day, sail through the confirmation process. As compared with both of President Obama’s other appointments, Justices Sonia Sotomayor and Elena Kagan, Garland is practically a gift to Senate Republicans in all his moderate-aging-white-guy-ness. I mean, who would have thought that of all the nominees Republicans were going to double-down their obstruction efforts on, it would be Justice Dad?

Instead, their objection is to the fact that the democratic process should guarantee they lose control of the Supreme Court. Unless, of course, they can stop that process.

Conservatives have spent decades investing in the federal courts as a partisan tool. They did so by building an infrastructure of sympathetic conservative federal judges through appointments when in executive power, and by blocking liberal attempts to do the same when in the political minority. It’s an investment that has largely paid off. Federal circuit appeals courts like the Fifth, Sixth, Eighth, and Tenth issue reliably conservative opinions regularly, thanks to aggressive appointments by conservatives during the Reagan and Bush years.

Meanwhile, thanks to conservative obstruction under Democratic administrations—most egregiously under President Obama—71 district court seats currently sit vacant. Twenty-four of those seats are in jurisdictions considered by the courts themselves to be judicial emergencies: places where the caseload is so great or the seat has remained vacant for so long the court is at risk of no longer functioning.

It’s easy to see why conservatives would want to keep their grip on the federal judiciary given the kinds of issues before it: These are the courts that hear immigration and detention cases, challenges to abortion restrictions, employment discrimination cases, as well as challenges to voting rights restrictions. Just to name a few. But as long as there are no judges, the people being directly affected are left in limbo as their cases drag on and on and on.

Our federal courts of appeals are no better. Nine federal appellate seats sit vacant, five in jurisdictions deemed judicial emergencies.

These vacancies have nominees. Senate Republicans just refuse to confirm them.

And no, the other side doesn’t do this. Federal judgeships have always been political. But never have the Democrats used the judiciary as a blatantly partisan extension of their elected members.

The refusal to vote on Garland’s nomination is the most visible example of the conservatives’ drive to maintain control over the federal courts, but it’s hardly their most blatant display of sheer partisanship. I’m guessing that is yet to come when, should they lose the presidential election, Senate Republicans face the choice of quickly confirming Garland or continuing their stand-off indefinitely. And given what we’ve seen of the election cycle so far, do we really think Senate Republicans are going to suddenly grow up and do their jobs? I hate to say it, folks, but Merrick Garland isn’t getting confirmed anytime soon.

Commentary Politics

In Mike Pence, Trump Would Find a Fellow Huckster

Jodi Jacobson

If Donald Trump is looking for someone who, like himself, has problems with the truth, isn't inclined to rely on facts, has little to no concern for the health and welfare of the poorest, doesn't understand health care, and bases his decisions on discriminatory beliefs, then Pence is his guy.

This week, GOP presumptive presidential nominee Donald Trump is considering Mike Pence, among other possible contenders, to join his ticket as a vice presidential candidate.

In doing so, Trump would pick the “pro-life” governor of a state with one of the slowest rates of economic growth in the nation, and one of the most egregious records on public health, infant and child survival, and poverty in the country. He also would be choosing one of the GOP governors who has spent more time focused on policies to discriminate against women and girls, LGBTQ communities, and the poor than on addressing economic and health challenges in his state. Meanwhile, despite the evidence, Pence is a governor who seems to be perpetually in denial about the effects of his policies.

Let’s take the economy. From 2014 to 2015, Indiana’s economic growth lagged behind all but seven other states in the nation. During that period, according to the U.S. Department of Commerce, Indiana’s economy grew by just 0.4 percent, one-third the rate of growth in Illinois and slower than the economies of 43 other states. Per capita gross domestic product in the state ranked 37th among all states.

Income inequality has been a growing problem in the state. As the Indy Star reported, a 2014 report by the United States Conference of Mayors titled “Income and Wage Gaps Across the US” stated that “wage inequality grew twice as rapidly in the Indianapolis metro area as in the rest of the nation since the recession,” largely due to the fact “that jobs recovered in the U.S. since 2008 pay $14,000 less on average than the 8.7 million jobs lost since then.” In a letter to the editor of the Indy Star, Derek Thomas, senior policy analyst for the Indiana Institute for Working Families, cited findings from the Work and Poverty in Marion County report, which found that four out of five of the fastest-growing industries in the county pay at or below a self-sufficient wage for a family of three, and weekly wages had actually declined. “Each year that poverty increases, economic mobility—already a real challenge in Indy—becomes more of a statistical oddity for the affected families and future generations.”

In his letter, Thomas also pointed out:

[T]he minimum wage is less than half of what it takes for a single-mother with an infant to be economically self-sufficient; 47 percent of workers do not have access to a paid sick day from work; and 32 percent are at or below 150 percent of the federal poverty guidelines ($29,685 for a family of three).

Despite the data and the struggles faced by real people across the state, Pence has consistently claimed the economy of the state is “booming,” and that the state “is strong and growing stronger,” according to the Northwest Indiana Times. When presented with data from various agencies, his spokespeople have dismissed them as “erroneous.” Not exactly a compelling rebuttal.

Like This Story?

Your $10 tax-deductible contribution helps support our research, reporting, and analysis.

Donate Now

As a “pro-life” governor, Pence presides over a state with one of the worst infant mortality rates in the nation. Data from the Indiana State Department of Health reveals a “significant disparity” between white and Black infant mortality rates, with Black infants 1.8 times more likely to die than their white counterparts. The 2013 Infant Mortality Summit also revealed that “[a]lmost one-third of pregnant women in Indiana don’t receive prenatal care in their first trimester; almost 17% of pregnant women are smokers, compared to the national rate of 9%; and the state ranks 8th in the number of obese citizens.”

Yet even while he bemoaned the situation, Pence presided over budget cuts to programs that support the health and well-being of pregnant women and infants. Under Pence, 65,000 people have been threatened with the loss of  food stamp benefits which, meager as they already are, are necessary to sustain the caloric and nutritional intake of families and children.

While he does not appear to be effectively managing the economy, Pence has shown a great proclivity to distract from real issues by focusing on passing laws and policies that discriminate against women and LGBTQ persons.

He has, for example, eagerly signed laws aimed at criminalizing abortion, forcing women to undergo unnecessary ultrasounds, banning coverage for abortion care in private insurance plans, and forcing doctors performing abortions to seek admitting privileges at hospitals (a requirement the Supreme Court recently struck down as medically unnecessary in the Whole Woman’s Health v. Hellerstedt case). He signed a “religious freedom” law that would have legalized discrimination against LGBTQ persons and only “amended” it after a national outcry. Because Pence has guided public health policy based on his “conservative values,” rather than on evidence and best practices in public health, he presided over one of the fastest growing outbreaks of HIV infection in rural areas in the United States.

These facts are no surprise given that, as a U.S. Congressman, Pence “waged war” on Planned Parenthood. In 2000, he stated that Congress should oppose any effort to recognize homosexuals and advocated that funding for HIV prevention should be directed toward conversion therapy programs.

He also appears to share Trump’s hatred of and willingness to scapegoat immigrants and refugees. Pence was the first governor to refuse to allow Syrian refugees to relocate in his state. On November 16th 2015, he directed “all state agencies to suspend the resettlement of additional Syrian refugees in the state of Indiana,” sending a young family that had waited four years in refugee limbo to be resettled in the United States scrambling for another state to call home. That’s a pro-life position for you. To top it all off, Pence is a creationist, and is a climate change denier.

So if Donald Trump is looking for someone who, like himself, has problems with the truth, isn’t inclined to rely on facts, has little to no concern for the health and welfare of the poorest, doesn’t understand health care, and bases his decisions on discriminatory beliefs, then Pence is his guy.