Supreme Court to Consider If Work Place Discrimination Against Pregnant Women is Really Discrimination

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While many of us would like to cling to the belief that the courts and especially the SCOTUS is above the fray of such things as partisanship and substituting ideology for law, we’ve seen enough of their work to know better. Majority rulings in cases on campaign finance, voting rights, women’s reproductive rights are just a few examples of conservative judges bent on transforming America into a contemporary version of a Dickens novel.

When it comes to the rights and issues that concern women and enlightened men, much of the focus has been on reproductive rights and the “radical” concept of ending gender based pay discrimination.

For years, however, women have endured pregnancy based discrimination in the work place. More recently, women have taken the fight to the court room. Most of the women on the front lines of this legal battle are women in “low wage” and “non-traditional” jobs.

The Supreme Court will consider argument in the case of Young v. UPS on Wednesday after the fourth circuit found that discriminating against pregnant women really isn’t discrimination at all.

Peggy Young is a former driver for UPS in Landover, Maryland. When she got pregnant in 2006 she got the standard doctor’s instruction for pregnant women to avoid lifting more than 20 pounds.

Young seldom had to lift more than 20 pounds to perform her job. Still, UPS refused to excuse her from these duties or transfer her to “light duties”. UPS’ policy of accommodating workers with a temporary transfer to “light duties” was limited to 3 sets of circumstances.

UPS policy of accommodating people with light duties, if such jobs are available and if their injury was sustained “on the job.” Second under the Americans with Disability Act, UPS is required to provide “reasonable” accommodation for an employee with a “cognizable impairment.” The third circumstance is if a driver loses their certification because of a failed medical examination, revoked or suspended driver’s license or involvement in a car accident. Young’s case has worked its way through the system. Following the Fourth Circuit’s ruling, Young went to the Supreme Court.

According to SCOTUSBlog,

The Fourth Circuit found no direct evidence of sex discrimination based on pregnancy, ruling that the disability policy was “pregnancy-blind” — that is, the company’s limits on accommodation applied to all workers who met one of the specified conditions, and only those workers; it did not single out pregnant workers for less favorable treatment. And that court rejected Young’s separate claim that she had a right to the same treatment as the workers who did meet those conditions. That clause in the Act, the appeals court said, does not create an independent legal right for pregnant workers to pursue.

For their part, the women’s rights advocates and the Equal Employment Opportunity Commission argue that the Pregnancy Discrimination Act provides an additional layer of protection for expectant mothers.

In reality, the Fourth Circuiit’s ruling is reminscent of a Supreme Court ruling that prompted Congress to enact the PDA in the first place. Supreme Court decision that held General Electric’s policy of excluding pregnancy benefits from its employees’ medical plans did not discriminate against women because the distinction is between pregnant women and “non-pregnant persons.” Charming, right?

Of course, conservatives and their far right “libertarian” brothers view laws like Pregnancy Discrimination Act that require them to accommodate their pregnant employees as they would an employee who is not pregnant as an unfair restriction on their “freedom” to unrestricted greed.

Young also lost her medical coverage because she hadn’t worked the hours that UPS required to maintain that benefit because she had to go on unpaid leave because UPS was unwilling to transfer her to light duties. In other words, welcome to pregnancy catch 22 where most pregnant women must work, but the work place makes it physically impossible for them to work because they are pregnant while the employer would accommodate a non-pregnant employee.

Now we can talk about the 1950’s fairy tale in which most women got married and stayed home throughout pregnancies and their entire married lives while the man earned the living and everyone lived happily ever after.

We have to deal with the reality that even if every women in America dreams of finding Mr. Right then settling into a life of children and bundt cakes; the single income family unit is extinct if it ever really existed.

Anyone with a reasonable degree of intelligence and something resembling a sense of fair play can see that when pregnant employees are treated differently than their non-pregnant counterparts when it comes to accommodations or benefits, it’s sex discrimination, pure and simple.

Image: Working Life