Laboring Before Delivery

Claire Zillman provides background on Young v. UPS:

When [Peggy Young] became pregnant and a midwife instructed her not to lift packages over 20 pounds, Young asked to return to UPS to do either light duty or her regular job as a truck driver, which seldom required her to lift heavy boxes. According to Young’s Supreme Court petition, her manager told her that UPS offered light duty to workers who sustained on-the-job injuries, employees with ailments covered by the Americans With Disabilities Act, and those who had lost Department of Transportation certification because of physical aliments like sleep apnea; not—the manager said—to pregnant workers. UPS wouldn’t allow Young to return to her former role either since her lifting restriction made her a liability. As a result, Young was required to go on extended, unpaid leave, during which she lost her medical coverage.

Oral arguments are scheduled for tomorrow. Lyle Denniston explains what is at stake:

For nearly four decades, it has been a form of illegal discrimination in the workplace to treat women workers unequally, just because they become pregnant.  But it still is not entirely clear just how much and what kind of equality that provision imposes on businesses.

They clearly cannot treat pregnancy as a reason to fire a worker, or cut her pay, or to deny her health benefits.  That is outright discrimination based on sex, under the Pregnancy Discrimination Act, added in 1978 to Title VII of federal civil rights law

But women’s rights advocates, and the U.S. Equal Employment Opportunity Act, take the position that the Act adds another layer of protection for pregnant workers: if an identified group of workers on the payroll gets lighter duty, or easier inside-the-plant assignments such as paperwork or answering phones, because they are temporarily disabled, the same opportunity should be available to workers whose doctors limit the kind of work they can do during pregnancy.

Gillian Thomas remarks that “Young’s story is increasingly typical”:

Women now constitute close to half the workforce, and three-quarters of them will be pregnant at least once during their working lives. Most pregnant women stay on the job right up until their due dates; according to a U.S. Census Bureau study, in the past 50 years, the number of women working into their ninth month more than doubled, with a whopping 82 percent of women who gave birth between 2006 and 2008 working into their final month of pregnancy. Coupled with these demographic realities are pregnancy’s medical realities: Even an uncomplicated pregnancy can cause nausea, migraines, urinary tract infections, carpal tunnel syndrome, back pain, shortness of breath, dizziness, and chronic fatigue while more serious conditions include diabetes, deep vein thrombosis, placenta previa, and pre-eclampsia. For women in jobs that involve prolonged standing (retail clerks, cashiers), are physically strenuous or dangerous (firefighters, law enforcement officers), or include contact with toxic materials (janitors, hotel housekeepers), pregnancy can be in direct conflict with their ability to work. Simply put, in order to continue earning a paycheck while pregnant, many women will need their employers to make some adjustments.

Bryce Covert covered the case back in October. Even if Young’s case fails, progress is being made at the local level:

Nine states have passed Pregnant Worker Fairness Acts that require all employers to give pregnant workers reasonable accommodations, like providing a stool or granting light duty, unless they would impose an undue hardship. The company says the new policy “will aid operational consistency given that a number of States in which UPS operates have relatively recently mandated pregnancy accommodations.”

These state laws may force other employers’ hands. “We see that these state pregnancy accommodation laws enacted recently really have made a tremendous difference,” [director of the ACLU’s Women’s Rights Project Lenora] Lapidus said. “There’s sort of a tipping point that has been reached where now a number of states have passed pregnancy accommodation laws, so companies that operate in multiple states really should…be changing their laws to comply.”