Defending the Workplace Baby Bump

The Supreme Court will hear oral arguments today in a case involving the rights of pregnant workers, Young v. United Parcel Service. A large group of pro-life organizations—23 of them—have advocated to protect pregnant workers from discrimination, putting them in an unusual position alongside pro-choice feminist groups.

The case involves Peggy Young, a former UPS driver who became pregnant and, on the basis of a recommendation from the doctor, requested temporary reassignment to a light-duty job that would not require her to lift boxes of more than 20 pounds. UPS offered such reassignments to workers with limitations similar to Young’s: when they had on-the-job injuries, disabilities under the Americans with Disabilities Act, or a variety of conditions that caused a driver to lose his or her Department of Transportation commercial driving license. But pregnancy was not among these categories, and so UPS denied Young a similar accommodation.

Young sued under the Pregnancy Discrimination Act of 1978 (the PDA), which prohibits pregnancy discrimination in the workplace as a form of sex discrimination and also, in a distinct clause, requires that employers give pregnant employees the same treatment as they give to nonpregnant employees “similar in their ability or inability to work.”

Young argued that UPS had violated the second clause by treating other conditions, but not pregnancy, as worthy of accommodation. She lost in the court of appeals, which ruled that the PDA was not violated unless UPS had a policy singling out pregnancy as a condition it would not accommodate.

The ruling suggests that an employer can refuse to accommodate pregnant employees as long as there are any other employees it also refuses to accommodate. Since employers frequently make accommodations for some conditions but not others, this approach significantly limits the duty of employers to make even simple, easy adjustments so that pregnant women can continue in their jobs.

As Judge Richard Posner put it in an earlier case, under this approach “employers can treat pregnant women as badly as they treat … nonpregnant employees”—that is, as badly as they treat any nonpregnant employees.

To a number of pro-life organizations, this case presented a clear pro-life issue. The PDA passed in 1978 with support from both pro-choice feminist and pro-life groups. At many places in the Congressional Record, members voting for the law noted that women who faced losing their jobs if they were pregnant could feel a powerful economic incentive to have abortions. The PDA’s chief Senate sponsor, Democrat Harrison Williams, argued that the measure could reduce the “tragedy of needless, and unwanted abortions;” then-Senator Joe Biden warned that without the law women “will be encouraged to choose abortion as a means of surviving economically.”

The need for the Pregnancy Discrimination Act has only grown in the years since 1978. Today, the National Partnership for Women and Families reports that women are the primary breadwinners in 40 percent of households with children, and three-quarters of women entering the workforce will become pregnant at least once while employed.

That’s why 23 pro-life organizations filed a friend of the court (amicus curiae) brief this September supporting Peggy Young’s position. (I served as co-counsel on the brief.) The pro-life groups argue that under the text of the pregnancy discrimination law, pregnant employees must be treated as well as employees who have been accommodated and are “similar in their ability or inability to work”—for example, the three significant categories of employees that UPS had already given light-duty assignments.

Pregnancy, the brief argues, should be treated as well as other conditions the employer deems worthy enough to accommodate—not as poorly as conditions deemed unworthy to accommodate. For pregnancy, the brief points out, is a very important condition: courts have repeatedly recognized that women (indeed, women and men) have a “fundamental interest” in being able to bear children and raise a family. The PDA should protect that interest from the economic pressure and insecurity—the threat of lost wages or benefits—created by workplace discrimination.

The brief emphasizes that the justices should follow the text and the intent of the PDA, but beyond that, it also stands as an important statement by anti-abortion groups: Protecting pregnant women is fundamentally pro-life. The 23 pro-life groups cut across the political spectrum, from Concerned Woman for America and the Southern Baptists to the Democrats for Life and Feminists for Nonviolent Choices. I hope that the message of this brief will resonate, and draw attention, in the broader society: supporting pregnant women is a pro-life cause, and pro-life groups of all kinds are strongly committed to it.

Thomas Berg is a professor at the University of St. Thomas School of Law in Minneapolis.