By MARSHA MERCER
If you were outraged by the Supreme Court’s Hobby Lobby decision, take a deep breath and get ready for the next
battle over women’s rights.
A case that will affect millions of working women is on the Supreme
Court docket for the term beginning Oct. 6. Young
v. United Parcel Service will test the law prohibiting employment
discrimination against pregnant women. And it’s anybody’s guess how this court
will rule.
The essential issue in Young is
whether an employer who provides accommodations to some workers with work
limitations must also provide them to pregnant workers who are “similar in
their ability or inability to work.”
The obvious answer: Yes, of course. It’s been against the law for
employers to discriminate against pregnant workers since the era of the Bee
Gees, Laverne & Shirley and big hair.
Congress passed and President Jimmy
Carter signed the Pregnancy Discrimination Act of 1978 in response to a
boneheaded 1976 Supreme Court ruling that found discrimination on the basis of
pregnancy was not sex discrimination but discrimination between pregnant and
non-pregnant people.
The pregnancy act says employers must treat a pregnant woman who is
temporarily unable to perform her job the same way it treats other temporarily
disabled employees.
Despite the law, allegations of discrimination against pregnant workers
persist more than 35 years later. Some members of
Congress and President Barack Obama want stronger laws to ensure that pregnant
workers don’t face discrimination.
And now the Supreme Court is getting involved.
Peggy Young was a part-time “air” driver for United Parcel Service in Landover,
Md., in 2006 when she took a leave of absence for in vitro fertilization treatments. She became pregnant and her
midwife said Young should not lift packages heavier than 20 pounds for the
first 20 weeks of pregnancy and 10 pounds subsequently.
Young wanted to return to work. As an air driver, she met an early
morning shuttle from the airport and delivered letters and packages by 8:30
a.m. These packages cost more to send and tend to be lighter than other UPS
packages, according to court documents.
But her job description required that she be able to lift packages
weighing 70 pounds. Young asked to return to her regular job or for light duty.
Her boss empathized but refused, saying Young was too much of a
liability to work at her regular job and citing the company’s policy to provide
light duty only to employees injured on the job, to those who meet the criteria
of disabled under the federal disability law or to those who lose their federal
driver certificate.
UPS says its policies are “pregnancy neutral” and are specified in its collective
bargaining agreement negotiated with the Teamsters. Young was a member of the
union. Young went on unpaid leave and lost her health insurance. She returned
to work after the baby was born.
Contending she was treated differently from others temporarily unable to
perform their jobs, she complained to the Equal Employment Opportunity
Commission, which authorized her to sue UPS. She
did with the support of the ACLU and women’s groups.
UPS contends it treated Young “exactly the same way it treats all employees – regardless of pregnancy
– who are unable to perform essential functions of the job as a result of an
off-the-job injury or condition.”
The district court ruled for UPS, and the U.S. Court of Appeals for the
Fourth Circuit affirmed the decision. Young took her case to the Supreme Court.
The justices asked the U.S. solicitor general for his advice on whether
to hear the appeal. The government’s lawyer, Donald B. Verrilli Jr., said no.
While the lower courts’ rulings were wrong and the questions raised are
“important and recurring,” Verrilli said, a disability law passed in 2008 law
will help resolve the legal issues. Besides, the EEOC is working on guidance
for employers. The justices decided to take the case anyway. They never say
why.
America’s working women will be waiting and watching. This time, surely,
a majority of justices will stand up for women’s rights.
© 2014 Marsha Mercer. All rights reserved.
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