This week, the Supreme Court will consider a case that could limit pregnant women's options to protect themselves from discrimination in the workplace.
As a lawyer who works on these cases, I'll be watching the case closely. If you're interested in the rights of pregnant women, you should tune in on Dec. 3 too.
But with all the legal issues justices will consider, it may be hard for a layperson to understand what's going on. That's why I've put together this comprehensive guide to following the arguments in Young vs. United Parcel Service.
What are the facts?
Peggy Young worked at UPS as a parcel sorter. The job description for her position required that she be able to lift at least 70 pounds. Young became pregnant and her health care provider sent a letter to UPS noting that she had a 20-pound lifting restriction. UPS told Young that she could not work until the restriction was removed. Young asked for a light-duty assignment, which UPS provided to workers injured on the job and in other limited situations. UPS said no, stating that since pregnancy was not an on-the-job injury, she did not qualify for light duty. Young sued, claiming that was a violation of the federal Pregnancy Discrimination Act, which says that an employer must treat a pregnant woman the same as other employers similar in her "ability or inability to work."
What was UPS' defense?
UPS argued that its policy did not discriminate against pregnant women. The company noted that Congress enacted the pregnancy discrimination law by amending the definition of a federal statute that barred sex discrimination, making it clear that pregnancy discrimination is included in the definition of discrimination "because of sex." Under that law (Title VII of the Civil Rights Act of 1964), a company policy does not constitute sex discrimination as long as the policy does not target women or have a disproportionate impact on women. UPS argued that its policy did not discriminate because pregnant women could still get an alternative assignment - provided they were injured on the job. UPS argued that Young's reading of the law meant that a pregnant woman could get light duty no matter what, while, for instance, a woman injured by lifting her child at home would not be entitled to the same treatment.
What have lower courts said?
The Fourth Circuit Court of Appeals considered the case and agreed with UPS. However, the Sixth Circuit, considering a similar case, found that Young's interpretation was what Congress intended. They can't both be right, so now it's up to the Supreme Court to break the impasse.
What did Congress intend?
The 1978 law that barred pregnancy discrimination arose out of another case, the 1976 Supreme Court decision in Gilbert v. General Electric. There, General Electric offered a benefit plan that covered employees suffering non-occupational injuries. The plan covered men and women, but explicitly did not cover pregnancy. Gilbert sued claiming that this constituted sex discrimination under federal law. GE countered that its plan was lawful because the pregnancy exclusion was not based on sex. GE argued it had to make a decision about what to include in the plan and what not to include. Drawing the line at pregnancy was a business decision and not one based on a desire to discriminate against women. (Sound familiar?) The majority of the court agreed with GE, finding that excluding pregnant women from the plan was not a violation of federal law and that, indeed, pregnancy was not covered under Title VII. Two years later (lightning speed for Congress) lawmakers passed the Pregnancy Discrimination Act, overturning Gilbert and making it explicit that pregnancy discrimination is barred by Title VII.
Now, the Young vs. UPS will come down to what Congress meant when it inserted the language of the law in the definition section of Title VII. Here is what the law says (with the key parts in italics):
The terms "because of sex" or "on the basis of sex" include, but are not limited to, because of or on the basis of pregnancy, childbirth, or related medical conditions; and women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment related purposes, including receipt of benefits under fringe benefit programs, as other persons not so affected but similar in their ability or inability to work....
Young looks to the language which plainly says that pregnant women must be "treated the same for all employment related purposes . . . as other persons not so affected, but similar in their ability or inability to work." Everyone is pretty much in agreement that, if that were the only issue, then Young should win. The law says what it says. But UPS argues that the Court must take into account that Congress placed this language in the definition section of the federal law on sex discrimination. UPS says that reading "ability or inability to work" stand alone, as Young wants, would require employers - as the Fourth Circuit said- to treat pregnant women with a special status at the expense of women who are not pregnant. That, according to UPS, cannot be what Congress intended. The second clause "as persons not so affected but similar in their ability or inability to work" only makes sense as clarifying that pregnancy discrimination is to be treated as sex discrimination, not anything more.
How can you tell which side is winning?
If like most everyone else you are not able to attend the argument, you can listen to a recording of the argument here occasionally you can find live tweets of Court argument at ScotusBlog. Here's what to watch for:
• Which Side Gets Questioned More and With What Kind of Tone. There has been a much written about what can be predicted about the final outcome of a case based on what happens in oral argument. 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. When you listen to the argument, count the number of questions posed to each side. Pay particular attention to the tone used by the justice. Much of the time the justice will make no secret of what he or she thinks about what the attorney has just said.
• Mention of the Americans with Disabilities Act. One important aspect of this case is that its outcome is limited because of amendments to the Americans with Disabilities Act. These amendments took effect in 2009 after Young sued and so did not apply to her case. The Amendments broadened the ADA significantly so that it covers many temporary conditions, even ones that could lead to lifting restrictions. Young may have been covered by the ADA had she needed the restriction in 2009. For this reason, the Obama Administration asked the Court not to take this case because the amended ADA may cover many of the types of issues raised by Young. So, watch for any references to that ADA. While the ADA is not itself at issue, justices might signal how they view the intersection of the PDA and ADA, which is a hot topic for those that follow this area of the law. While the Court may not make new law in this area, any comments made by justices during the argument and - even more important - in the decision itself (called "dicta") could provide opportunity for lower courts to expand or ratchet down on the ADA.
• Strange Bedfellows. Remember that what is at issue in this case is the correct interpretation of a law. The legal issue has nothing to do with whether a company should or should not accommodate pregnant employees. That means that justices may use this case to advance his or her theory about how statutory interpretation should work. A justice may be looking at this like a long chess game with this case a just one move towards a more (for him or her) important objective. That means, that you might see justices take a position outside of the normal liberal/conservative fault line, e.g., with Justice Scalia throwing UPS under the bus or Justice Sotomayor disagreeing with Young. As noted above, the impact of this case on pregnancy discrimination is somewhat limited by the amended ADA, which means that justices have extra cover to use this case to put his or her stamp on an issue of statutory interpretation rather than worry about the impact on pregnancy discrimination.
• Shout Out to Pregnant Women. This case is not about whether companies should accommodate pregnant woman. A justice could personally believe that it is good policy for companies to do what they can to allow pregnant women to work and still find that UPS has a better argument about how the Court should interpret the PDA. Still, this will be a platform for a justice, should he or she chose, to say something about the issue of pregnancy discrimination. This would more likely come from one of the more "liberal" justices who might use this opportunity with the country watching to get in a line or two about the issue.
• EEOC. The Equal Employment Opportunity Commission recently issued enforcement guidance taking a position that essentially support Young's position, that is that the PDA requires companies to offer pregnant women light duty if they do so for other employees. But this was not a unanimous decision by the Commission. Two of the commissioners publically disagreed, in particular chastising the Commission for taking a position before the Court decides Young. 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 cover to disregard them. In contrast, if the Court relies on the EEOC guidance to rule in favor of Young, that will bolster the EEOC's authority.
• Pregnant Workers Fairness Act. 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.) A justice inclined to support the position of UPS could use the PWFA to argue something like: "Congress must not have intended the PDA to cover a woman in Young's position because there is proposed legislation to address accommodation non-disabled pregnant women at work." This in, in part, why supporters of the PWFA filed a brief noting that Congress did not offer the legislation for that purpose, but rather to correct courts that were incorrectly applying the PDA. If Young loses, leaving pregnant employees with fewer protections, the PWFA may find more supporters in Congress. Supporters of the law will try to turn lemons into lemonade by arguing: The Supreme Court has left pregnant employees high and dry, so Congress needs to fix the problem. Look for more strange bedfellows here with social conservatives joining liberal members of Congress in support of the law.
• Parade of Horribles. 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. That type of argument generally benefits UPS. For instance, the argument that Young's preferred interpretation would benefit pregnant women at the expense of a parent who pulled her back lifting a young child fits in this category. If you find the justices throwing these kind of hypotheticals at the attorneys for Young and the Obama Administration, which supports Young, that suggests a win for UPS.
• Gilbert vs General Electric. One of the strongest arguments that Young has is that the Court need only look to Gilbert (discussed above) to see what Congress intended with PDA. Congress enacted the PDA because it disagreed with Gilbert. And the reasoning GE used in Gilbert sounds an awful lot like what UPS argues here. GE ultimately lost, and so should UPS, Young might argue. If the Court spends a lot of time asking UPS's attorney about Gilbert, that's not a good sign for UPS.
• Justice Anthony Kennedy. 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.
The Young case is an important one for the rights of pregnant women in the work place, but the case may have a bigger impact in other areas of the law. And, regardless of what the Court decides, it will give the justices an opportunity to discuss views about pregnancy discrimination. These views may have a larger impact on pregnancy discrimination and other areas of the law than the narrow issue decided by the Court.
[Read my analysis after the oral arguement and this piece was written to learn more.]
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.