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SCOTUS to examine pregnancy discrimination in new case

SCOTUS to examine pregnancy discrimination in new case

Prepare and make ready your gender equality buzzwords.

Title VII of the Civil Rights Act of 1964 prohibits sex discrimination against pregnant women, but how far does Title VII require an employer to go to accommodate pregnant workers who develop conditions limiting their ability to do their jobs? We already know an employer can’t use a pregnancy to fire an employee, cut her pay, or deny her health benefits, but should they be forced to go so far as to offer up alternative work during the duration of the pregnancy?

This morning, the Supreme Court will tackled Young v. United Parcel Service, which asks whether, and in what circumstances, the Pregnancy Discrimination Act, 42 U.S.C. § 2000e(k), requires an employer that provides work accommodations to non-pregnant employees with work limitations to provide work accommodations to pregnant employees who are “similar in their ability or inability to work.”

Bloomberg has the facts of the case:

Young worked out of a UPS facility in Landover, Maryland. Her job required her to load packages onto vehicles and deliver them to their destination. Although she says the vast majority of those packages were envelope-size, her job description required her to lift parcels of up to 70 pounds.

In 2006, Young became pregnant after in vitro fertilization, and her doctor and midwife said she shouldn’t lift objects weighing more than 20 pounds during the first half of the pregnancy or more than 10 pounds for the rest.

She says UPS refused to accommodate her needs either by adjusting her job responsibilities or by temporarily assigning her to a position that didn’t require heavy lifting.

There were “many, many jobs” she could have performed at the Landover facility, including those that required only handling phone calls or addressing packages, she said in an e-mailed response to a reporter’s question. She also said she would have worked in a nearby facility if the company preferred.

“I was flexible,” Young said. “I just needed my job.”

She went on an unpaid leave of absence and returned to work after her baby was born. She later left UPS.

End game aside, it’s a fair question: if you have another, similar group you’re accommodating with lighter work during a temporary disability, why not include into the mix pregnant women who develop similar disabilities?

To be honest, I’d never really thought about it before I read the briefs in this case; I assumed that they were covered. Young has a long list of amici at her disposal—everyone from anti-abortion groups to the White House has stepped up to ask the Court to take another look at the wording of the Title VII to see if it covers women like Young.

Business associations, on the other hand, are concerned that employers’ ability to implement neutral employment policies would be affected, as well as their ability to offer more desirable positions to more senior employees, and create distinctions between part time and full time positions.

According to reports following oral arguments, the Court doesn’t appear to have signed on to either position. We’ll keep you posted on how the case progresses.

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Comments

pregnancy is not a workplace injury, employer should not be forced to provide another job while at the same time having to backfill her actual job.

Shouldn’t I be able to sue for having to take up the slack of a pregnant woman? It’s her fault that I have to work harder and not get extra pay.

OK, if I was an employer with a fraction of the employees of UPS, I would have worked to keep a good (I assume here) employee during her gestation. It would be in my interest to do that, but NOBODY would have a right to compel me to do that.

Do women of child-bearing age have a right to bear children? I’d say they do.

Do they have a “right” to work for me or anyone IF they CHOOSE to have a child and that choice impinges on their job performance? Nope. No more than if a man wanted to go on an extended “bucket-list” vacay.

    Gremlin1974 in reply to Ragspierre. | December 3, 2014 at 7:28 pm

    I agree with Rags. If you go out Base Jumping and break your leg, should your employer have to make accommodations for you during your recovery? I say they shouldn’t. We aren’t talking about a injury that happened at work, which of course they should make accommodations for those. We are talking about a condition that comes about due to personal choice, especially in the case above. This lady didn’t accidentally slip and fall on a fertilized embryo she made a conscious decision to become pregnant which she knew might affect her ability to to her job, that is not the companies responsibility.

      You can get insurance that provides coverage for lost compensation for personal injury/illness. One of those plans probably covers pregnancy too.

Not even a close call imo. Pregnant woman deserves a break when medically necessary. WTF was UPS thinking?

This is not a situation like some transgender freakazoid stirring up trouble over washrooms or limp wristed nancy boys and feminazis wanting to abolish urinals.

Are there no gentlemen left who would not pick up some packages for a few months for a woman with child without whining about it? I’m retired now, but I’m sure I’d have said, “70 pounds? 7 months? Yes’m, it would be an honor.”

Has the left turned all the XYs into metrosexuals?

    Valerie in reply to DaMav. | December 3, 2014 at 6:50 pm

    UPS is big, and swapping out job responsibilities should be relatively easy and routine given the size of their workforce, which is probably why UPS offers accommodations for people with other, temporary, disabilities. This begs the question of why this person, and secondly, is it really because she is a woman? There may be some other facts in play, here.

Insufficiently Sensitive | December 3, 2014 at 6:35 pm

Too many third-party special-interest groups are trying to use the power of government to coerce employers to reward the groups’ clients at the employers’ expense.

Generally for the employee that means reduced production, or increased pay for the same production.

And when the third party is part of the government, it buys them votes, which the employer pays for.

The fact that it has taken this long (50 years!) for a case like this to get to the SCOTUS tells me most employers have accommodated pregnant women.

    Ragspierre in reply to gasper. | December 3, 2014 at 8:25 pm

    OR, more likely, women haven’t had the brass to bring this case, knowing that NOT being able to perform gives them no freehold on their job.

If her doctor said she shouldn’t lift more than 20 lbs., her employer should have tried to move her to a position that met that condition, if one was available, since it was for an extended period of time.

On the other hand, I understand the company’s position as well. When I was in the Army, one of my best friends was an X-Ray tech. He and the other males in the section were run ragged because all the female techs in the section were pregnant, so all they could do was clerical work.

    MarkS in reply to malclave. | December 3, 2014 at 8:31 pm

    It sounds as though women don’t really want equal treatment rather special exceptions

      Valerie in reply to MarkS. | December 3, 2014 at 9:26 pm

      It has been the law for 50 years that, if a company is large, and if it makes accommodations to its employees for other reasons, it has to make accommodations for pregnancy. Such accommodations are generally made wherever a company has employee insurance or worker’s compensation. This is routine, temporary, and pervasive. That is why I do not understand why this case even made it to the SCOTUS. There must be some other facts to this.

        Estragon in reply to Valerie. | December 4, 2014 at 4:38 am

        It is one thing to make accommodations to rehabilitate someone injured at work, quite another to be forced to offer the same accommodations to those whose conditions are not work-related at all.

        The law hasn’t been applied in this fashion AFAIK, although some companies may voluntarily accommodate others.

AlphaDesigner | December 3, 2014 at 9:33 pm

As a small business owner, I have tried to imagine what issues would be raised by this employee’s need for temporary accommodations. My business was a retail store which marketed items for home design projects,including artwork, furniture, design fabrics, wallpaper, area rugs, custom trimmings, upholstery services, custom drapery, custom bedding, and paint color selections, with workroom fabrication and installation of same, and also offered the design services with home and commercial site consultations. I also had a second location that was a showroom which sold and installed all types of floor covering, wall covering,custom area rugs, and offered design consultations to both retail customers and builder/commercial accounts. Opened in 1986, we were in our 22nd year and doing well before Wall Street greed decimated the housing market, and all but ended the market for home renovation and design updating. I still have the company, but had to close down the retail operations, put inventory into storage units, and have continued as the only employee.
However, back to my original thinking. Very honestly, the question of accommodating her needs would be directly related to her value as an employee. And, with a small staff, I tended to value the majority of my employees quite highly. Otherwise, they would probably not have remained as an employee. So, I have no problem seeing how it would be quite workable, and would be a win-win situation for everyone. There would be a sense of community/familial concern for one another, and stronger loyalties and work ethic would benefit from employees realizing that they were intrinsically valued. I think the very same results could have happened with UPS, if they had been more open to the possible solutions available. I am personally aware of the pressure that UPS puts on its employees for extremely high productivity, with numbers, numbers, numbers highly stressed, eg. delivery stops per hour. Their workers know that personal needs are not on the same page as company needs. In fact, not even the same library. Forget making it to your child’s occasional special school program in the evening, if it involves any adjustments in your work day. Given that, the response to the pregnant employee is not really surprising. Perhaps the employee was expecting a more empathic response than is company policy. I suspect that was the case. I liked having the ability to humanize the work environment for my employees, and I feel that, if anything, it enhanced the success of my company. People are far more committed to pitching in when asked to go above and beyond–like the incredibly long hours for weeks on end, along with very high stress and deadline anxiety, that comes with doing a house that is part of a Designe & Builder competition Tour of Homes showcase–if they aren’t harboring resentments because there is no reciprocal company understanding for their own personal priorities or special needs. It just makes good business sense to me. And, it’s a whole lot easier to look myself in the mirror at the end of the day, if I feel that I treat the people on whom I depend with respect and dignity and the kind of appreciation that reciprocates when I can.

Jane the Actuary | December 3, 2014 at 11:40 pm

Here’s the issue: UPS did not universally accomodate all such temporarily-impaired employees. There were some categories which were accomodated, and others that weren’t, and, so far as I understand, the Young argument is that the “norm” was to accomodate, and, with the exception of pregnancy, it was rare not to accomodate such a request. UPS says, to the contrary, that the exceptions to their rule of non-accomodation, were special cases not at all like pregnancy.

The bigger picture is this: whatever the validity of the legal arguments, the Pregnancy Nondiscrimination Act says that only if an employer accomodates temporary impairments (and they don’t have to) do they have to accomodate pregnant women’s requests. And the public case Young and her supporters are making is an argument for the court to unilaterally change the law to require accomodations in all cases.

http://janetheactuary.blogspot.com/2014/12/in-case-of-pregnant-ups-worker-theres.html

It was a different world when I worked back in the 1960’s and 1970’s. One big difference is that women interviewing for work (in NYC), often removed “finger rings” … be they wedding bands or engagement rings. Because employers didn’t want to deal with pregnant office workers.

There was also another “rule” in place. Teachers couldn’t go in front of classrooms if they were “obviously” pregnant. Believe it. Or not.

Whatever Title VII says was written back in those “old” days.

As to the decision, I’ll guess ahead of time the court will split 5/4. And, even though I’m no lawyer; 5/4 decisions are weak. Full court decisions s-t-r-e-c-h. They can be quoted later on. Not so 5/4. Let alone when you’re dealing with O’Connor’s “forks.”

There’s a great book out there on FDR’s court. It’s called “Scorpions in a Bottle.”

This is not a normal pregnancy. Women get pregnant all the time. Here? In-vitro fertilization. This woman had to miss a lot of work. She had to go through hormonal therapy. To produce the eggs. Which were surgically removed. So they could receive the sperm that would start the pregnancy.

There’s a lot of information missing. Yes, UPS made all these procedures possible because the employer provided access to health insurance.

And, basically the employee wanted to enjoy all of the benefits of her employment … while looking to change the structure of the job she was hired to do, to one involving much less work.

Also, in this case the doctor’s note is supposed to supersede what this woman had been hired to do. Now, if Young wins … And, she’s in the “winner’s position” per the case title: Young V UPS … then does she get the right to sue for millions?

Wife and I had a similar situation: We had an unplanned pregnancy while she was working as an RN. One day she developed complications (sub-something bleed) that caused her doctors to impose lifting restrictions of 10 lbs. The hospital wouldn’t create a light-duty position. She was still required to help patients in/out of bed, to RR, etc.

They put her on unpaid leave and said they would hold her job. She never went back. In our case, I was still working, so we were able to make some lifestyle changes and all was well, but if she was the sole provider, it would be a gut-wrenching choice to make.

Maybe a better solution is to offer pregnancy insurance – by election, not mandate.

    siguiriya in reply to Seth. | December 5, 2014 at 6:38 am

    Pregnancy insurance would probably be pretty expensive. The only people who would sign up for it are those who plan on getting pregnant.

    From the point of view of social policy I think that an accommodation for pregnancy would be a good idea. If a woman is smart enough and dedicated enough and responsible enough to hold a permanent job, isn’t THAT exactly the kind of woman who should be bringing new life into the world? And wouldn’t it make sense to provide some income protection for her during her pregnancy — especially when the protection is not a handout but only a temporarily different job?

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