The Supreme Court won't tell us until next year whether it will limit a law intended to help pregnant women at work, but it gave some clues last week.
In oral arguments on Young v. UPS on December 3, the justices asked revealing questions -- and sometimes tipped their hand by what they didn't ask.
I've read the transcripts (available here) and using some things that I was watching out for I've reached a few conclusions about which way the justices are leaning. Unfortunately, it's not looking good for the worker in this case, but it's still an open question what that means for pregnant workers overall.
Let's take a closer look at the evidence.
Which side gets questioned more and with what kind of tone. Some scholars have found a correlation between the number of questions directed at a side and the outcome of the case, with a party that is quested more and more negatively likely to lose. What happened at oral argument?
There were no real surprises here with conservative Justice Antonin Scalia hammering away at the attorney for Peggy Young and the attorney for the Obama Administration, which supported her. Scalia twice noted that Young's interpretation of the statue would give pregnant women "most favored nation" status, which is the exact term the Fourth Circuit used when it ruled against Young. Justice Samuel Alito threw a couple of softball questions at the attorney for UPS, making no secret about his position.
Justices Elena Kagan and Ruth Bader Ginsberg, and to a lesser extent Justice Sonia Sotomayor, grilled the lawyer for UPS, repeatedly backing her into a corner with questions about UPS' position, which they suggested ignored the phrase directing employers to treat pregnant woman the same as other employees similar in their "ability or inability to work."
Justice Breyer played an active role, and seemed to be generally supportive of Young's position, but struggled with how her position could be broadly applied, noting instances in which an employer can lawfully offer benefits to a some employees without also offering them to every pregnant employee, for instance, benefits based on seniority.
Justices John Roberts and Anthony Kennedy participated minimally and Justice Clarence Thomas, as usual, did not ask a single question.
Americans with Disabilities Act. I noted that this case will have a more limited impact now than at the time Young filed it because of the expanded Americans with Disabilities Act (ADA). These amendments took effect in 2009, three years after Young sued and so do not apply to her case. However, the ADA will apply to many similar cases going forward. What happened at oral argument?
The ADA got almost no airtime; thus, suggesting that the ADA's impact may not play a role in how justices decide the case. Of course, the ADA could end up making an appearance in the written opinion, but the justices apparently felt little need to address the issue. That could, in part, be due to the fact that 60 minutes barely left enough time for the justices to weigh some particularly thorny statutory construction issues.
Strange bedfellows. I noted that justices might use this case as a vehicle to address issues of statutory interpretation, issues that do not always break down along liberal/conservative lines; thus, a justice might take an unexpected position in this case. What happened at oral argument?
As indicated above, that did not happen. But one interesting twist was at least a suggestion that the justices might send this case back to the lower courts for more litigation. There are two ways this could happen.
The first would significantly narrow the impact of this case. UPS argued that it denied accommodations to non-pregnant workers with off-the-job injuries. And the lower courts suggested this was so. But when challenged by Young's attorney, UPS could point to no specific example. It appears that this issue was not fully explored in the discovery phase. And because the trial court kicked the case out before it got to a jury, there was no trial testimony to review. So, when justices asked both sides how often UPS, in fact, denied accommodations to non-pregnant employees, no one could provide a solid answer.
The issue is important because UPS' policy looks a lot less neutral if it in practice primarily affected pregnant employees. In contrast, if UPS routinely denied light-duty assignments to employees injured off the job, then it looks a lot less discriminatory. The only way to get to the bottom of this conclusively is for the Court to send the case back to the trial court and allow parties to start the process all over again. If that were to happen, there is a very good chance the case would be over because UPS might finally settle. In any event, if all the Court did was send the case back to the trial court, its opinion would likely have little relevance outside of this case.
A second way to send this back to lower courts for review has broader implications for pregnant workers. Kagan suggested a middle way out of the difficult either/or in this case. Here is the problem: The statue clearly says that pregnant women must be treated the same as those similar in their ability or inability to work. But a straightjacket application of that language might lead to some results that everyone is pretty sure Congress did not intend. For instance, no one is suggesting that a company that offers a benefit program based on seniority must offer one to a pregnant woman who lacks seniority. On the other hand, UPS' argument -- that the PDA merely makes is clear that pregnancy discrimination is the same as sex discrimination -- suggests that the language "similar in the inability or ability to work" means nothing, which also does not make sense.
Kagan suggested a common sense way out: the law says what is says, an employer cannot, as a general rule, offer benefits to a group of employees and exclude pregnant workers. However, an employer that does so can rebuff a challenge of discrimination by showing that it has a non-discriminatory reason for doing so. Kagan noted that courts routinely use this two-tiered method in discrimination cases of other types. (The Supreme Court developed this "burden shifting" framework in the 1973 McDonnell Douglas case.) No other justices took a position on this, but expect to see it again in the written opinion. If the Court sends the case back for the trial court to sort this out, it will not matter if parties settle; it will still be the law that the McDonnell Douglas framework applies to the PDA. If the Court adopts this analysis, I would count it as a win for pregnant employees because it would adopt Young's position in significant part.
Shout out to pregnant women. I said, "This will be a platform for a justice, should he or she chose, to say something about the issue of pregnancy discrimination." What happened at oral argument?
Yes, we have at least one example of this from Kagan. In an exchange with the attorney for UPS, Kagan had this to say:
"Well, Ms. Halligan, for the democratic process to work as it should, the PDA has to be given a fair reading. And what we know about the PDA is that it was supposed to be about removing stereotypes of pregnant women as marginal workers. It was supposed to be about ensuring that they wouldn't be unfairly excluded from the workplace. And what you are saying is that there's a policy that accommodates some workers, but puts all pregnant women on one side of the line."
I expect that we will see more of this in written opinion.
Equal Employment Opportunity Commission. I said, "Look for the any comments about the EEOC's guidance. Negative comments will not only signal a win for UPS, it will give lower courts that do not like EEOC positions to disregard them." What happened at oral argument?
The EEOC got thrown under the bus. Because it came only from Scalia, it probably does not mean much for the outcome of this particular case, but it will not be helpful to the mission of the EEOC. I'll get to Scalia's comments below. First, some background. The Obama Administration supported Young in this case. However, in doing so, it actually reversed positions it has taken previously when it defended the United State Postal Service, which has a policy similar to UPS.
The Young case is the first time that the federal government has supported the position that it is unlawful under the PDA for an employer to offer light-duty assignments to a group of employees and not to pregnant employees. When Scalia asked, essentially, what gives? The lawyer for the Obama administration responded that the difference was that the EEOC issued enforcement guidance stating that the reasoning advanced by Young was the correct interpretation of the statue. Here's the exchange:
GENERAL VERRILLI: It is correct that the Department of Justice defended the Postal Service practices against charges like those that Ms. Young makes in this case. That's correct. ... Since then, however, the EEOC has issued guidance, and that's a very significant fact. Congress has charged the EEOC with authority to interpret this statute and with an authority to enforce it.
JUSTICE SCALIA: I thought we felt that we don't give deference to the EEOC.
GENERAL VERRILLI: You don't give Chevron deference to the EEOC. [Chevron is a Supreme Court case holding that courts are not bound by, but should defer to, statutory interpretations by administrative agencies charged with enforcing the law.]
JUSTICE SCALIA: Oh, come on. So we give what do you call the other kind of deference? I mean, gee, you give that to me even when even when I'm in dissent. I mean, that just means, you know, treat it for what it's worth.
GENERAL VERRILLI: The EEOC sets the enforcement policy for the Federal sector with respect to this issue. That's a significant fact. We took it into consideration in deciding what the position of the United States should be. . . . we took the position in light of the guidance it adopted in 2014, which we do consider to be significant and we do have to weigh our interest as enforcer of the law as well as employer.
JUSTICE SCALIA: But we don't give you any more deference than we give the EEOC, though, right?
GENERAL VERRILLI: Well, with respect to this, I do think that the Court's got to decide what the best reading of the statute is, that's right.
JUSTICE SCALIA: What the best reading is, regardless of what you think.
GENERAL VERRILLI: That's correct.
You can practically hear Scalia sneer, essentially saying that the EEOC guidance is of little importance to the Court. Note that no other justice stood up for the EEOC. Of course, it is possible that a justice more inclined to listen to the EEOC is keeping his or her powder dry for the written opinion. We'll see.
Pregnant Workers Fairness Act. I said, "The Pregnant Workers Fairness Act is pending in Congress and would require employers with 15 or more employees to provide reasonable accommodation to pregnant women even if they are not covered by the ADA. (Some states are considering similar legislation.)" I noted that justices might ask advocates about the law. What happened at oral argument?
Crickets. Nary a mention of the Act. I expect that it will get some action in the written opinion, even if just a footnote or two. As I noted in the previous article, the PWFA is more likely to get a lot more attention if Young loses, with those who support workplace accommodations for pregnant women - both those on the liberal side of the spectrum and social conservatives - invigorated to find a legislative fix.
Parade of Horribles. I said "This is a tactic in which an advocate argues that many undesirable things will happen if a court interprets a law in a way he or she opposes." What happened at oral argument?
Not much on this front, though there was broad recognition that the term "in their ability or inability to work" cannot be applied literally in every instance because there may be some legitimate circumstances in which benefits are offered to a subset of employees and not pregnant employees, seniority systems, for instance.
Gilbert vs General Electric. I said, "One of the strongest arguments that Young has is that the Court need only look to Gilbert to see what Congress intended with PDA. ... If the Court spends a lot of time asking UPS' attorney about Gilbert, that's not a good sign for UPS." What happened at oral argument?
Kagan and Ginsberg made significant use of Gilbert. Kagan mentioned the case 10 times as she pinned down UPS' attorney arguing that her client's position is not substantively different from General Electric's, which the PDA explicity rejected. While it made for interesting debate during oral argument, this does mean much for the outcome of the case because Kagan and Ginsberg were, I think, safe yes votes for Young going into the argument.
Justice Anthony Kennedy. I said, "The Court has nine justices. Four generally line up on the more 'liberal' side of an issue, and four on the 'conservative' side. Justice Kennedy is often in middle and thus can cast the vote that determines the outcome of the case. For that reason, court watchers keep close tabs on what Justice Kennedy says. You should do the same during the Young argument." What happened at oral argument?
Kennedy played a minor role in the argument, but his limited participation is troubling for Young. He primarily questioned Young's attorney and the government's attorney, and his questions suggested skepticism about Young's position. Kennedy made the first statement out of the gate. Look at it below and see what you think.
JUSTICE KENNEDY: [To Young's attorney]. Well, what you make it sound as if the only condition that was not accommodated was a lifting restriction because of pregnancy, and I did not understand that to be the case. I mean, that's the way you start. You want me to say it's only pregnancy, unless I've missed something. ... Well, I mean, I think that's a necessary starting point for your case. It seems to me that you started out by really giving a misimpression.
Now what happens? Oral arguments are fun because they showcase some of the best appellate attorneys in the nation and they give a window into how the justices view a case. But they hardly decide the issue. That is, in part, because a lot happens before the Court issues its written opinion, and once the Court issues its written opinion, that document is the only thing that matters, what the justices said in oral argument has no legal effect.
After oral argument, the justices will meet to discuss this case and take informal votes. Once there is a majority of five or more justices for a decision, the most senior justice in the majority will assign a justice to write the majority opinion. During this time, justices may lobby one another to change his or her opinion on the issue. Once the final vote is set, the justice assigned to write the opinion will set about writing it - with the help of his or her law clerks, some of the best and brightest lawyers in the nation. Once a draft of the opinion is complete, a justice may change his or her mind about joining it. He or she may issue a "concurring opinion" in which he or she joins the majority opinion on some points, but not others.
No matter how the decision ultimately plays out, it can take a number of months. Expect to see an opinion from the Court sometime next spring.
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.