In the mid-aughts, the United Parcel Service had two policies that seem irreconcilable by any basic standard of fairness. The first was that if a UPS driver temporarily lost his or her license because of a DUI conviction, the company would consider assigning an additional driver to shuttle them around and keep up their job responsibilities. The second was that if a UPS driver became pregnant and was told to avoid heavy lifting, there was a chance that no accommodations would be made to let her continue to deliver packages. In UPS’s eyes, pregnancy deserved no more special consideration than an off-the-job injury.
Earlier today, the Supreme Court handed down a decision that undermines those policies—and any others that don’t require employers to lighten the workloads of pregnant employees when exceptions are made for others. In addition to accounting for the needs of employees with DUI convictions, UPS would make exceptions for employees whose high blood pressure or history of accidents prevented them from driving. “Why,” Justice Stephen Breyer wrote on behalf of the 6-3 majority, “when the employer accommodated so many, could it not accommodate pregnant women as well?”
Since Breyer and his colleagues found the answer to that rhetorical question flimsy, millions of American women—as of 2008, nearly two-thirds of women who had given birth in the last year were in the labor force—have gained another vote of confidence from the federal government. Even though amendments to the law since this suit originated have limited its practical implications, this decision carries symbolic value: It's another formal federal recognition that pregnancy demands reasonable accommodation as something that only women have to deal with, and as something that comes with a set of health risks that run up against the exigencies of just about all jobs.
This particular case involved Peggy Young, a (now-former) UPS driver, who, while pregnant, requested a less demanding workload after a midwife told her to limit her lifting to 20 pounds. UPS denied her request on the grounds that its drivers needed to be able to lift at least 70 pounds, and put her on leave, without pay or health benefits. (UPS has since changed its policy.) Young filed a lawsuit that worked its way up to the Fourth Circuit Court of Appeals, which didn’t side with her; the Supreme Court’s ruling today will require the Circuit Court to reevaluate Young’s suit, taking into account the ways that other UPS employees were accommodated.
Justices Scalia, Thomas, and Kennedy—perhaps not coincidentally three men—argued that the majority’s decision introduced burdens on employers that went beyond the prescriptions of the Pregnancy Discrimination Act, which provided the original grounds for Young's lawsuit. Scalia wrote that the Court’s new standards were “splendidly unconnected with the text and even the legislative history of the Act.”
That's typically vibrant language for the Court's resident contrarian, but what was atypical was the dissent written by Kennedy, who agreed with Scalia’s legal interpretation but felt the need to go out of his way to flag the importance of pregnancy as a workplace-equality issue. “There is no showing [by UPS] here of animus or hostility to pregnant women,” he wrote. “But as a matter of societal concern, indifference is another matter.” He went on about the difficulties that pregnant women can face when balancing the responsibilities of work with the health considerations of pregnancy.
The majority had similar concerns, but found support for them in the law. "In our view," Breyer wrote, "the Act requires courts to consider the extent to which an employer's policy treats pregnant workers less favorably than it treats nonpregnant workers similar in their ability or inability to work."