Peggy Young, the UPS driver who was forced to leave her job when she got pregnant because she says the company wouldn’t assign her light duty, will have another day in court, as Supreme Court Justices John Roberts and Samuel Alito joined with the Democratic appointees to craft what Young’s attorney called a “big win, not just for pregnant women, but also for all women in the workplace.” That is no small feat from a court that has in recent years narrowed interpretations of anti-discrimination law and been reluctant to impose on businesses.
The case had brought together an unusual alliance of women’s rights activists and anti-abortion groups, who argued that women would be pushed out of the workforce or more likely to have abortions of wanted pregnancies. Samuel Bagenstos, the University of Michigan professor who argued Young’s case before the Court, said the decision is “a big step forward towards enforcing the principle that a woman shouldn’t have to choose between her pregnancy and her job.”
The 6-3 opinion, written by Justice Stephen Breyer, sends the Young case back to the Fourth Circuit of Appeals, which had previously ruled against Young, with a new set of rules that Bagenstos said make Young’s chances of prevailing “very strong.” The Fourth Circuit, Breyer wrote, should have asked, “Why, when the employer accommodated so many, could it not accommodate pregnant women as well?”
Justices Anthony Kennedy, Clarence Thomas and Antonin Scalia dissented. Scalia accused the Court of waving a “Supreme Wand” and coming up with a “deliciously incoherent” interpretation of the law that is “as dubious in principle as it is senseless in practice.”
The question the court had to consider was whether the second part of the 1978 law making it illegal to discriminate against pregnant women also meant that employers have to provide reasonable accommodations to keep them at work. That part of the law says that “women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes … as other persons not so affected but similar in their ability or inability to work.”
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Young argued that because UPS accommodated other kinds of workers, such as injured ones or drivers who had lost their Department of Transportation licenses, it was discriminatory not to extend the same to pregnant women who also temporarily needed to be accommodated. The court’s majority didn’t entirely accept that argument, but it did say that pregnant workers could bring claims under a long-settled process for adjudicating other discriminatory claims under Title VII of the Civil Rights Act.
Under the court’s reasoning, Young wouldn’t have to show UPS was intentionally discriminating against pregnant workers, but a court would have 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.” Just like in other discrimination claims, the company would then have an opportunity to show if there was any “legitimate, nondiscriminatory, nonpretextual justification for these differences in treatment.” The company’s justification wouldn’t necessarily be the end of the story, though — a company can’t just claim, for example, that it would be too expensive or inconvenient for them to accommodate a pregnant woman.
Alito voted with the majority but wrote a separate opinion. He zeroed in on the fact that UPS provided temporary accommodations for drivers that had lost their licenses. “It does not appear that respondent has provided any plausible justification for treating these drivers more favorably than drivers who were pregnant,” Alito wrote.
“In some ways, Justice Alito was adopting the argument we had made in a more pure form than the court adopted the argument we had made,” Bagenstos explained.
Scalia’s tart dissent would have held that Young had no right to accommodation under the law. He argued that the court had overstepped its role. “The Court seems to think our task is to craft a policy-driven compromise between the possible readings of the law, like a congressional conference committee reconciling House and Senate versions of a bill,” he wrote. Kennedy joined in the dissent but wrote separately, apparently seeking to blunt the impact of Scalia’s words by stating his concern for pregnant workers: “There must be little doubt that women who are in the work force—by choice, by financial necessity, or both—confront a serious disadvantage after becoming pregnant… The difficulties pregnant women face in the workplace are and do remain an issue of national importance.”
UPS has since changed its policy to explicitly include accommodations for pregnant workers, but the rules laid out by the case will impact working women at companies around the country, since they guide lower courts in future litigation.
Marcia D. Greenberger, co-president of the National Women’s Law Center, pointed out in a statement that while the Supreme Court “has put employers on notice: pregnancy is not a reason to discriminate,” legislation would make the road easier for women like Young. “Individual pregnant workers may still face uncertainty about their rights in the specific contexts of their own workplaces,” Greenberger pointed out. The Pregnant Workers Fairness Act, which has languished in Congress, would make it clear employers have to provide reasonable accommodations to pregnant women, without the burden of showing in court that other, similar workers had gotten such accommodations.
A spokesman for Senator Bob Casey of Pennsylvania told msnbc that the Democratic lawmaker will introduce a version of the Pregnant Workers Fairness Act Wednesday as an amendment to the Senate’s budget. A vote will likely be held Thursday or Friday.
Irin Carmon