The Supreme Court gave pregnant workers a big victory this week, but not in the way they had once hoped.
In its decision in Young v. UPS, the court's majority found a compromise position between a broader reading of anti-discrimination law favored by former UPS driver Peggy Young and a narrow reading favored by the company's attorneys.
For Young, the decision means she gets to ask a lower court to go ahead with a lawsuit that had previously been dismissed. She could still lose, but she at least gets her day in court.
The case's effects on pregnant workers overall is not immediately clear. But as an experienced attorney dealing with these kinds of cases, I believe that it will ultimately help make the playing field a little more favorable for workers who have faced discrimination.
Let's unpack the Court's decision a little so that we can see how.
Peggy Young worked as a driver for UPS. When she became pregnant in 2006, her doctor recommended that she not lift more than 20 pounds, but her job required that she lift packages up to 70 pounds.
She asked for a light-duty assignment, but UPS declined, citing a company policy that only workers injured on the job and facing other limited circumstances could qualify. Unable to return to work, Young lost her health insurance. She later returned to UPS two months after giving birth.
Young sued UPS arguing that its refusal to allow her to return to work violated the Pregnancy Discrimination Act, which states 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 . . . ."
Young argued she was "similar in [her] inability to work" as someone who, say, pulled her back while lifting a package on the job. She argued that the law means what it says, i.e., the person who injures her back on the job and needs temporary light duty is in a situation no different than hers and thus cannot be treated differently.
UPS countered that the term "other persons" in the law was more limited, referring only to workers who were in Young's situation -- i.e., those whose disabling condition occurred off the job. Using that standard, it treated Young the same as it would treat a worker who pulled her back lifting her infant child. Both could be denied light duty because they were injured off the job.
The federal trial court agreed with UPS and dismissed her case before a jury could hear it. She appealed and the Fourth Circuit Court of Appeals upheld the trial court. Young then appealed to the Supreme Court.
What the Supreme Court Said
In its decision, the Supreme Court found that lawyers for both sides were too categorical in their approaches.
Young's lawyers were arguing that employers should offer pregnant workers anything they offer to any other group of employees, no matter the reason. But the court said this doesn't make sense because sometimes an employer might treat workers differently for reasons of seniority or other legitimate reasons.
The Court found UPS's argument similarly unpersuasive, noting that its preferred definition of "other persons not so affected but similar in their ability or inability to work" was so restrictive that it essentially meant that the law merely disallowed discrimination based on pregnancy. The Court noted that the first part of the law "women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes" accomplished this. Congress meant for the second clause to mean something, the Court reasoned, so UPS's interpretation could not be the correct one.
Left with what it found to be to untenable positions, the Court cut a path down the middle. The majority agreed with Young that generally an employer shouldn't be allowed to treat a pregnant worker differently than a non-pregnant worker. The Court agreed with UPS that "other workers" does not mean that an employer must apply the same benefits to a pregnant worker as it provides to any other worker in the company. So the Court struck a compromise finding that an employer could not treat a pregnant worker differently than a non-pregnant work unless the employer had a good non-discriminatory reason.
In practice, it would be something like a tennis match. A pregnant employee could get a lawsuit over the net by arguing that her employer violated the law when it refused to give her, for instance, a light-duty assignment while giving non-pregnant workers similar changes.
The employer could then knock the lawsuit back over the net by showing that it had a good, non-discriminatory reason to treat pregnant workers differently.
The pregnant employee could then lob the lawsuit back over the net again if she could show that the reason offered by the employer was just a cover story for discrimination. A jury would then determine which side it believed offered the best evidence.
Note that this type of framework is well established in employment law. The tennis match that I referred to is called "burden shifting" and courts have long used it after the Supreme Court established it in McDonnell Douglas vs. Green.
Why This is a Win for Pregnant Workers
Some commentators have suggested that this was a compromise. That is true as far as the legal theory goes. The Court fashioned a framework somewhere in the middle of the polar opposite positions taken by Young and UPS. But, as a practical matter, this was a bigger win for pregnant employees because the ability to get into court is more than half of the battle.
If UPS had won, here's how a conversation might have gone between a company lawyer and a CEO after a pregnant worker's attorney had called.
Company lawyer: Ted, got a call from one of your employees. She's been told that she can't come back because she's pregnant and needs light duty. I think we're pretty solid on the law here. But thought I'd at least check to make sure this how you want me to play it.
CEO: Absolutely. We provide light duty to those injured on the job because it helps us with worker's comp. If I make an exception for her, I'll have a line out my door with folks wanting this and that. If we fight this, how much will it cost me? And will I be deposed?
Company lawyer: Ah, I'd say ballpark $10,000 to $15,000. I doubt they'll sue, but if they do, we'll knock them out at a motion to dismiss. SCOTUS has spoken and we won. You won't even have to leave your office for this one.
Now, let's run that last conversation again under the law as it stands after this opinion.
Company lawyer: So, ah, Ted, I just a got a call from a lawyer representing the pregnant women your company denied light duty to. Yes, that one. They are sniffing around and talking about the possibility of a lawsuit. You don't -- right -- just categorically deny pregnant employees light duty, do you?
CEO: Well, no. We revamped our policy based on your training once that Supreme Court decision came down. Now we offer light duty on an as-needed basis based on seniority.
Company lawyer: So, how solid are you on that? If I go down to the company and conduct an internal investigation on this, am I going to find that is how the policy is always applied?
CEO: I mean, I can't say 100 percent for sure. We've got a lot of people here.
Company lawyer: Okay. Based on what they are telling me now, they've got enough to get into court and start litigation. How hard do you want to fight this?
CEO: How much will it set me back?
Company lawyer: Hard to say, but with that opinion, more of these cases are making it to summary judgment and some beyond. Assuming the usual paper discovery, a couple of depositions and then a motion for summary judgment, I'd say $50,000 to $75,000. More if we get into a real slugfest.
CEO: Would I get deposed?
Company lawyer: It's certainly possible.
CEO: The last thing I want to explain to my board is why the company is shelling out $100,000 just so that I can spend a day getting deposed. Maybe we can make a deal to help her return to work.
You see the difference. If the Court had found in favor of UPS, many women would have little leverage to fight if they found themselves in Young's situation. Now, they do.
That's not to say that it is now easy for pregnant employees to challenge discriminatory company policies. Many cases will still die before they ever get to a jury.
But with this opinion, the Court has given pregnant employees around the nation at the least the possibility of winning the fight against employers using UPS-like policies that force pregnant women out of the workforce.
Tom Spiggle is author of the new book "You're Pregnant? You're Fired: Protecting Mothers, Fathers, and Other Caregivers in the Workplace," now available on Amazon. He is founder of the Spiggle Law Firm based in Arlington, Va., where he focuses on workplace law specializing in helping clients facing discrimination due to pregnancy or other family-care issues, such as caring for a sick child or elderly parent. This is Spiggle's first book. To learn more, visit: www.yourepregnantyourefired.com.