Everyone loves a pregnant woman, right? Not exactly. Her employer, for one, might not be so thrilled, according to experts who spoke at a federal hearing called Wednesday in Washington, D.C., by the U.S. Equal Employment Opportunity Commission (EEOC).
More than 30 years ago, the Pregnancy Discrimination Act was enacted to protect pregnant women, who have increasingly chosen to work while pregnant. With my first two children, I reported to my newspaper job until the day before I gave birth; I delivered my third just a few hours after leaving work. In a country that doesn’t offer mandatory paid maternity leave, I didn’t want to burn any of my time off. But while I was busy churning out articles, plenty of women were being demoted or losing their jobs while pregnant.
In fact, the number of pregnancy-related discrimination charges have jumped by 35% in the past decade; 1 in 5 discrimination charges leveled by women is associated with pregnancy, according to the EEOC. Since 2001, the agency has handled 52,000 pregnancy cases that amounted to $150.5 million in damage. “Pregnancy discrimination persists in the 21st century workplace, unnecessarily depriving women of the means to support their families,” said Jacqueline Berrien, chairwoman of the EEOC, which is inviting the public to submit comments through the end of the month on pregnancy discrimination in the workplace at firstname.lastname@example.org.
Now consider that women comprise 47% of this country’s workforce and are the primary — or co-primary — earners in nearly two-thirds of families, and you can see why getting fired because you want to expand your family could present a multifaceted problem. This is why, Judith Lichtman, senior adviser for the National Partnership for Women & Families, told the commission, “women cannot afford to lose their jobs or income due to pregnancy or childbirth.”
(MORE: ‘The Pregnancy Project’: Why One Girl Decided to Fake Her Baby Bump)
Yet panelists offered numerous instances of discrimination: harassment and hostility on the part of employers, decreased hours, forced unpaid leave. Joan Williams, director of the Center for WorkLife Law at the University of California, Hastings College of the Law, told of a pregnant employee who wasn’t allowed to alter her uniform to accommodate her growing belly; instead, she was made to go on leave when she could no longer squeeze into it. And women aren’t the only ones being impacted: men who’ve requested leave for caregiving reasons report being penalized because caring for family members — babies or otherwise — is considered women’s work.
Perhaps those most affected are those who can least weather job loss: low-wage workers in the services industry, where work schedules can be inflexible or completely unpredictable.
Once women give birth, the discrimination continues in the form of the “motherhood wage penalty” of up to 5% per child — even after controlling for education and experience. “Motherhood constitutes a significant risk factor for poverty,” said Stephen Benard, a sociologist at Indiana University, who noted that “the gender gap in wages may be primarily a motherhood gap.”
(MORE: Study: Why Maternity Leave Is Important)
Is there anything that can be done? Better enforcement of existing laws and enhanced guidance to employers on how to comply could help. And the EEOC was urged to establish a task force made up of the EEOC and members of the U.S. Department of Labor, the Department of Justice and the Office of Personnel Management to further examine the issue. Will that suddenly change things for the better? Unlikely, but it’s worth a shot. As Lichtman observed, “Working women, caregivers and their families depend on the guarantee of equal opportunity in the workplace.” And yet, she noted, “The discrimination faced by pregnant workers and caregivers has persisted for decades, despite the laws and court decisions that sought to root out such discrimination long ago.”
The elusive work-life balance remains a work in progress.
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In a case that has garnered an enormous amount of attention from women and women’s rights groups, and from across the ideological spectrum, the Supreme Court cobbled together a 6-3 majority to rule in favor of Peggy Young, a UPS employee who was not offered an accommodation by her employer when she was pregnant. The justices didn’t accept the broadest version of Young’s discrimination argument, but they certainly made it clear that nobody can be treated as she was by an employer without recourse to the courts.
Dahlia Lithwick writes about the courts and the law for Slate and hosts the podcast Amicus.
The underlying facts of Young v. UPS are pretty straightforward: The Pregnancy Discrimination Act amended Title VII of the Civil Rights Act of 1964. The first clause of the PDA clarified that Title VII’s prohibition against sex discrimination applies to discrimination “because of or on the basis of pregnancy, childbirth, or related medical conditions.” The second clause says that employers must treat “women affected by pregnancy ... the same for all employment-related purposes ... as other persons not so affected but similar in their ability or inability to work.” The question for the Supreme Court was whether Peggy Young’s claim that UPS violated the PDA and engaged in pregnancy discrimination was correctly decided by the lower courts, which threw her case out before she ever got to trial. The answer today? No. She gets to go back and argue her claim in the Virginia courts.
Writing for the majority, Justice Stephen Breyer found that, “Viewing the record in the light most favorable to Young, there is a genuine dispute as to whether UPS provided more favorable treatment to at least some employees whose situation cannot reasonably be distinguished from Young’s. She should be allowed to go back to court to argue that the reason she was not accommodated was her pregnancy.”
In dissent, Justice Antonin Scalia uses the terms “magic wand” and “poof” to illuminate this point.
Young had been a part-time driver for UPS, a job that required her to lift 70 pounds. When she got pregnant in the fall of 2006, her doctor gave her light lifting restrictions, meaning she could lift no more than 20 pounds. She asked to be accommodated. But UPS wouldn’t accommodate her request for light lifting, contending that the company offered accommodations for only three classes of workers: those injured on the job, those who lost their Department of Transportation driving certification, and those who have a disability under the Americans with Disabilities Act. UPS told Young that she was ineligible for an accommodation and forced her to take an unpaid leave of absence without health benefits. According to her lawyer, Sharon Gustafson, in a conference call, any pregnant worker who sought accommodation at UPS at the time was similarly sent home.In July 2007, Young sued, claiming that UPS violated the PDA in refusing to accommodate her pregnancy-related condition.*
A federal district court judge and an appeals court both ruled in favor of UPS. The appeals court found that Young’s situation was not comparable to those who were “disabled” or “injured on the job.”
On Wednesday, the Supreme Court actually ended up rejecting both Young’s interpretation of the PDA and UPS’s arguments. Breyer didn’t buy Young’s contention that, as he put it, “the statute grants pregnant workers a ‘most-favored-nation’ status.” He writes that he doesn’t accept the argument that “as long as an employer provides one or two workers with an accommodation—say, those with particularly hazardous jobs, or those whose workplace presence is particularly needed, or those who have worked at the company for many years, or those who are over the age of 55—then it must provide similar accommodations to all pregnant workers.” Breyer also rejected an argument from the EEOC, which had changed its own guidelines while the case was pending at the Supreme Court, that its new rules should carry the day. Finally, Breyer’s opinion rejected the UPS reading of the PDA statute that as long as its light-duty rules were "pregnancy neutral," treating Young like anyone else was permissible.
Breyer concludes that the correct test lies between the two parties’ positions. Using what’s known in discrimination law as the “McDonnell Douglas framework,” he lays out the new test: “A plaintiff alleging that the denial of an accommodation constituted disparate treatment under the Pregnancy Discrimination Act’s second clause may make out a prima facie case by showing, as in McDonnell Douglas, that she belongs to the protected class, that she sought accommodation, that the employer did not accommodate her, and that the employer did accommodate others ‘similar in their ability or inability to work.’ ” The employer can come back and show it had “legitimate, nondiscriminatory reasons for denying her accommodation.” But (and this is important) Breyer writes, “consistent with the Act’s basic objective, that reason normally cannot consist simply of a claim that it is more expensive or less convenient to add pregnant women to the category of those (‘similar in their ability or inability to work’) whom the employer accommodates.”
The point is, according to the majority opinion, Young should have had a chance to plead her case in court. Breyer is careful to add that the court doesn’t necessarily find that Young suffered actual discrimination, and that UPS’s old policy was impermissible. That question is kicked back to the Fourth Circuit.
Justice Samuel Alito wrote a concurring opinion arguing that the second clause in the PDA clause “does not merely explain but instead adds to the language that precedes it.” He thus concludes that the majority is correct, although his reasons are narrower than the broad analysis put forth by the majority.
In dissent, Justice Antonin Scalia, joined by Justices Anthony Kennedy and Clarence Thomas, accuses the majority of crafting a “new law that is splendidly unconnected with the text and even the legislative history of the act.” In his view, the court simply made up (he uses the terms “magic wand” and “poof” to illuminate this point) a test that is nowhere in evidence in the words of the statute, seemingly so everyone could just go home feeling good about themselves. He accuses the other justices of engaging in “inventiveness posing as scholarship—which gives us an interpretation that is as dubious in principle as it is senseless in practice.” Scalia would have read the law as UPS did: “The right reading of the same-treatment clause prohibits practices that discriminate against pregnant women relative to workers of similar ability or inability. It does not prohibit denying pregnant women accommodations, or any other benefit for that matter, on the basis of an evenhanded policy.” In classic style, he just lets them have it: “To produce the desired result. Poof! The same-treatment clause means that a neutral reason for refusing to accommodate a pregnant woman is pretextual if ‘the employer’s policies impose a significant burden on pregnant workers.’ Poof!” He says that his disagreement with the majority is a “fundamental one.”
Samuel Bagenstos, who argued this case for Young at the high court this winter, says that this decision “is a big win, not just for Peggy Young but also for all women in the workplace. The court recognized that a ruling for UPS would have thwarted Congress's intent in passing the Pregnancy Discrimination Act. The court made clear that employers may not refuse to accommodate pregnant workers based on considerations of cost or convenience when they accommodate other workers.” I asked him whether the fact that UPS changed its own policy on pregnant workers last January and now tries to accommodate them makes a difference for her. He says, “I think Peggy still has a live claim, and the court has reactivated that claim. If UPS wants to treat Peggy Young the way they now treat all their pregnant drivers, that would be great!” This result is a big win for Young, and for all women, Bagenstos says: “It's a big step forward towards enforcing the principle that a woman shouldn't have to choose between her pregnancy and her job.”
*Correction, March 25, 2015:This post originally misidentified the Americans with Disabilites Act as the Americans with Disability Act. (Return.)