At the Supreme Court: The Meaning (and Meaningfulness) of Pregnancy Non-Discrimination

(From Tom Berg:) The Supreme Court heard oral arguments Wednesday in Young v. United Parcel Service, the case involving accommodations for pregnant workers under the Pregnancy Discrimination Act of 1978 (the PDA).  As I’ve mentioned in a prior post, Peggy Young had sought and been denied the same sort of light-duty accommodation that had been given to workers with similar work limitations from other causes, such as on-the-job injuries, disabilities under the Americans with Disabilities Act, and conditions or circumstances (medical problems, drunk-driving convictions) that led to a driver-employee’s loss of a Department of Transportation commercial truck-driving license.  And as I’ve detailed, 23 pro-life organizations, including Democrats for Life, filed an amicus brief arguing that the PDA should be interpreted to require pregnancy accommodations when the employer made accommodations for other such categories of workers who were (in the words of the statute) “similar in their ability or inability to work.”

Many media outlets, including the New York Times and the Washington Post, remarked on the convergence in this case of pro-life groups and pro-choice feminist groups.  It was indeed striking, at the press conference after the argument, to see Galen Carey of the National Association of Evangelicals followed by Marcia Greenberger of the National Women’s Law Center, both expressing support for strong protections for pregnant women.  Democrats for Life’s own Kristen Day was one of the two featured pro-life speakers (DFLA played a key role in bringing the pro-life brief to fruition).  And Kristen nailed it:

As a pro-life advocate, I am proud to stand here to support Peggy Young. In our movement, we are often accused of caring only for the unborn child and ignoring the needs of the women. The fact that I am joined by 22 other pro-life groups is a testament to our commitment to the value of life and of raising children. Denying benefits and not providing reasonable accommodations for a pregnant woman is not pro-life.

Oral argument focused on the key legal question in the case:  Is the PDA violated only when the employer singles out pregnancy for denial of accommodation?  Or is it also violated when the employer makes accommodations for some (though not all) other workers whose conditions make them (to quote the the statute) “similar in their ability or inability to work,” and then denies accommodation to pregnant women?  The arguments got a little intricate, and some justices (Roberts, Kennedy) said less in this argument than usual, giving little or no indication how they were inclined.

This is the crucial question in the case, because many employers accommodate some conditions that create similar limits as pregnancy, and not others.  If out “singling out” pregnancy is a violation, these employers are acting legally, even though they could be making the same accommodations for pregnant women as they’ve made for others, and even though those accommodations could be easy to make.  So here’s how the question can be rephrased:  To treat pregnancy “the same” as other similar conditions, to which other conditions should pregnancy be compared: those that are accommodated, or those that are not?

The pro-life brief (at 28) answers the question this way.  It first notes that pregnancy implicates the fundamental interest of women–and indeed of men too–in being able to have children and raise a family without the economic pressure of possibly losing a job, health benefits, etc.  The brief then concludes (I’ve added the boldface):

[T]his case requires a determination about the meaning of pregnancy discrimination itself: that is, whether employers must treat pregnant women as well as the employees who receive the greatest accommodations, or whether they may treat women as badly as non-pregnant employees who receive the fewest accommodations. The answer to that question is clear in light of Congress’s recognition of the importance of the interest in being able to have children and also work: pregnancy should be treated the same as conditions that are important enough to accommodate.

And here’s how Sam Bagenstos, Peggy Young’s lawyer, answered the question in a similar way, in the last words of his argument to the Justices Wednesday (boldface again added).

 [T]he purpose of this statute is to say to employers, as Justice Kagan said, you have to treat pregnant workers as just as valued employees as anybody else, and if you think it’s valuable to keep these employees on the job who are injured on the job because they keep valuable work, valuable knowledge within the company, do that for pregnant women.