Guest Blog: Lisa Faye Petak, Pregnancy Discrimination: A Glimmer of Hope?

This week, the Supreme Court will hear oral arguments in Young v. United Parcel Service and face a question that affects millions of working mothers in the United States: whether, and in what circumstances, the Pregnancy Discrimination Act (“PDA”) requires an employer who provides work accommodations to non-pregnant employees with work limitations to provide work accommodations to pregnant employees.

The Facts

Peggy Young was a driver for UPS when, in 2006, she became pregnant. In consultation with her physician, she was urged, like so many pregnant women, not to lift more than twenty pounds — a weight she rarely had to handle, as most people do not ship such heavy packages through UPS. Her employer, however, refused to reassign her to a “light duty” position during her pregnancy or to excuse her from lifting the odd offending package – modifications she would have been provided if she had been injured on the job, qualified for an Americans With Disabilities Act accommodation (which does not include normal pregnancy), or had lost her commercial driver’s license. She was instead forced to take unpaid medical leave, without benefits, and she subsequently sued her employer for violations of the PDA.

For women’s rights advocates (and, in a rare instance of shared ground over scorched earth, many in the anti-abortion movement), the case presents a clear opportunity for the Court to lend its support for both working mothers and the health of their future children, as well as give teeth to the PDA’s edict that discrimination based on pregnancy and its related conditions constitutes sex discrimination under Title VII of the Civil Rights Act of 1964.

The Court’s Past Failures

Yet advocates for pregnant women have been burned before and, with good reason, retain a healthy skepticism that the Court will interpret the PDA and Title VII in a way that protects pregnant workers. Judges do not have a strong track record of recognizing the practical – and biological – realities of pregnancy. In Geduldig v. Aiello, the Supreme Court held that the denial of benefits for work loss resulting from a normal pregnancy did not constitute sex discrimination under the Fourteenth Amendment’s Equal Protection Clause. Key to the majority’s reasoning was the basic contention that a failure to cover pregnancy-related disabilities is not sex discrimination at all – even though only women can become pregnant. With a blind eye turned, the Court applied rational basis scrutiny and prioritized the state’s interest in avoiding costly payouts related to normal childbearing. The fact that women alone would be forced to bare those costs, apparently, did not factor into the Court’s reasoning.

Later, in General Electric v. Gilbert, the Court held that discrimination based on pregnancy was not sex discrimination under Title VII, but rather discrimination between pregnant persons and non-pregnant persons. Justice Rehnquist, writing for the majority, built on Geduldig and reiterated that an employer’s decision to refuse disability coverage for normal pregnancies does not constitute sex discrimination, but rather distinctions “between pregnant women and non-pregnant persons,” with the first group being exclusively female and the second gender-neutral. Again, the Court failed to see how requiring one sex to shoulder the cost of a disability that only she can incur constitutes discrimination.

In rapid response to the Gilbert decision, Congress passed the Pregnancy Discrimination Act just two years later, amending Title VII to clarify that “the terms ‘because of sex’ or ‘on the basis of sex’ include, but are not limited to, because of . . . pregnancy, childbirth, or related medical conditions” and 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 . . . .” In drafting the PDA, Congress relied on the Gilbert dissents, which noted that “it is the capacity to become pregnant which primarily differentiates the female from the male,” and that the distinction should not be between pregnant persons and non-pregnant persons, but rather “between persons who face a risk of pregnancy and those who do not.”

Yet the clear language of the PDA has not proven to be the silver bullet working women hoped for. In practice, protections for “other related medical conditions” associated with childrearing have been all but erased from the law by judicial interpretation. Even with the Supreme Court upholding the PDA in Newport News Shipbuilding and Dry Dock, Co. v. E.E.O.C., no court has held that discrimination, not based on one’s clear status as a pregnant woman, but rather her status as a person who was or can be pregnant, violates the PDA’s terms.

The Hopes for this Case

Until E.E.O.C. v. Houston Funding II. Shockingly, it took until 2013 – twenty-five years after the passage of the PDA – for a federal court to finally see that pregnancy discrimination can exist, not just in the disparate treatment of women during the nine-month gestation, but also based on conditions, such as lactation, that occur only because of pregnancy.

Supporters of Peggy Young should take solace in this recent decision from, of all places, Texas. Not usually considered the vanguard of gender equality or the protector of employee rights, the Court of Appeals for the Fifth Circuit announced in Houston Funding II what appears to be obvious: that lactation is a pregnancy-related medical condition, and that discrimination based on lactation violates Title VII and the PDA.

That someone managed to connect the hormonal need to express milk post-pregnancy with pregnancy itself should not be a monumental occasion. But for advocates fighting for judges to see how pregnancy biologically and practically affects working mothers, Houston Funding II gives serious hope. After decades of judicial decisions glossing over – or entirely ignoring – how pregnancy affects female employees, both before and after childbirth, the fact that a federal appellate panel connected lactation to pregnancy is good news indeed. The next step, then, is for courts to see that pregnancy requires employer support, and that without it, a woman is forced to pick between keeping her job and doing what she and her doctor deems best for her and her child. And when only one sex is forced to make that choice, it is, quite clearly, sex discrimination.

To be clear, Houston Funding II focused on discrimination under Title VII and the PDA, and did not address any requirements to provide pregnancy-related accommodations, as Peggy Young claims the law demands. But with federal judges now upholding even the most common sense interpretations of the PDA, here is to hoping the Supreme Court will let evolved thinking rule the day, and let women like Peggy Young keep her employment benefits while heeding her doctor’s advice.

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