Thursday, July 3, 2014

Supreme fight ahead over pregnant workers' rights -- July 3, 2014 column

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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