On Wednesday, the Supreme Court will hear the case of Peggy Young, a former UPS driver who had to go on unpaid leave — rather than paid leave or adjusted duty — when she got pregnant and a doctor told her to stop lifting heavy packages. Though UPS has since adjusted its leave policy for pregnant workers, the company maintains and a lower court agreed that the Pregnancy Discrimination Act doesn’t make it illegal to give pregnant employees different leave policies than non-pregnant ones. If the act did make such treatment illegal, they say, it would constitute special treatment. Young’s side, on the other hand, argues that making accommodations for pregnant workers is to treat them the same as other workers, not specially.
Unsurprisingly, several women’s rights organizations, like the Women’s Law Project and Legal Momentum, which is associated with the National Organization for Women (NOW), have filed an amicus brief in support of Young.
But, despite all the women’s-rights oomph behind Young’s case, the history of feminism and pregnancy discrimination isn’t so clear cut.
As Justice Ruth Bader Ginsburg has pointed out, the Pregnancy Discrimination Act was passed in 1978 to specify that discriminating against pregnant people is a kind of sex discrimination (after the Supreme Court case had earlier decided the opposite). It was less than three decades ago — in 1986 — that NOW, as well as the Women’s Rights Project of the American Civil Liberties Union, came out on the side of the employer in a case that sounds very similar to Young v. United Parcel Service. They aren’t exactly parallel, but many of the deep questions raised by the earlier case remain pertinent today. How much should childbearing be connected to a woman’s identity? Does respecting women require making allowances for that undeniable difference? Or would doing so hold women back by linking their legal identities to their function as mothers? How much inequality can be tolerated in the service of big-picture equality?
At issue was a challenge to a 1978 California law that required businesses to offer unpaid maternity leave. Lillian Garland had been a receptionist at a California bank when she took advantage of the state law and went on unpaid leave to have a baby in 1982; when she was ready to return to work, the position had been filled. Without her income, she was soon evicted and lost custody of her daughter, leading her to bring a suit against her former employer.
As TIME reported during the dispute, NOW and the ACLU ended up taking the bank’s side, preferring that employee benefits not be sex or gender-specific. “The question is, Should a woman with a pregnancy disability get her job back when other employees with disabilities get fired? You undermine your argument unless you say everyone is equally entitled to this benefit,” explained the ACLU’s Joan Bertin. In other words, anything that keeps an employee from working should be treated the same, whether or not it’s pregnancy, and no law should apply only to women. Meanwhile, feminist icon Betty Friedan and her allies saw things differently: in her view, the law treated everyone equally because it made clear that anyone, male or female, should be able to make decisions about having a family without the risk of losing his or her job.
“The time has come to acknowledge that women are different from men,’’ Friedan said. ‘’There has to be a concept of equality that takes into account that women are the ones who have the babies.’’
The next year, in 1987, the Supreme Court sided with Friedan, finding that the California law neither discriminated against men nor forced employers to treat women specially, as it did not bar companies from extending unpaid leave benefits to men as well.