In 1976, the U.S. Supreme Court found that treating pregnant women unfavorably was not sex discrimination. Two years later, Congress came back with an amendment to Title VII of the Civil Rights Act of 1964 explicitly saying it was.
Almost four decades later, the high court is again considering a case of pregnancy discrimination, in a move that has baffled women’s rights activists.
“Here we are at the end of 2014, talking about pregnancy discrimination, which we women’s rights advocates thought we had addressed and basically fixed in 1978,” says Judith Lichtman, senior adviser at the National Partnership of Women and Families.
In the decades since the Pregnancy Discrimination Act was passed, the U.S. Equal Employment Opportunity Commission, which enforces the act, says discrimination complaints have increased. In 1997, over 3,900 complaints were filed. In 2013, that number jumped to 5,342.
On Wednesday, the Supreme Court will hear oral arguments in the case of Young v. UPS, after which it will consider whether refusing to accommodate pregnant women in the workplace always amounts to discrimination.
In Young’s case, the former UPS employee was placed on unpaid medical leave soon after she asked that her duties be shifted after her doctor told her to avoid lifting heavy objects. The company refused, noting it only did that for certain workers including those who had sustained injuries while on the job or who were covered by the American Disabilities Act. Young was instead placed on unpaid leave and eventually, according to the petition, lost her health coverage.
The company says it had the legal right to deny Young’s request at the time, though UPS has since changed its policy and will allow pregnant workers to take alternative assignments when necessary starting next year. In its legal filings, the company argues that Young is seeking special treatment for pregnant employees, a standpoint shared by pro-business groups such as the U.S. Chamber of Commerce. They argue that would set an unwelcome precedent on other corporate policies.
“If Petitioner’s approach were adopted,” read an amicus brief filed by the Chamber of Commerce , “it would overturn the seniority policies of thousands of American businesses and frustrate the valid goals of these policies.”
Young and her supporters argue that pregnant workers whose doctors say should limit their work should be treated similarly to any other temporarily disabled employee.
The tide of opinion appears to be in their favor. A recent poll by the Center for American Progress, a liberal think tank, found that 79% of Americans think the Supreme Court should support Young in the case. Twelve states and two cities including West Virginia, Texas, New York City and Philadelphia have laws that in some way require employers to accommodate workers whose abilities may be limited by their pregnancies. And in July, the EEOC issued guidelines that say employers should not “refuse to treat a pregnant worker the same as other employees who are similar in their ability or inability to work by relying on a policy that makes distinctions based on the source of an employee’s limitation.”
Still, women’s groups are not sure that they’ll prevail before the Supreme Court. If that happened, the ball would be in Congress’ court, much like it was when the justices ruled against women claiming pregnancy discrimination back in 1976 — or, more recently, when the high court ruled against a woman who said she was not paid fairly in the Lilly Ledbetter v. Goodyear Tire & Rubber Co. case. That ruling led directly to the Lilly Ledbetter Fair Pay Act of 2009, which addressed the problem justices had with the statute. Congressional Democrats have already introduced the Pregnant Workers Fairness Act.
Marcia Greenberger, co-president of the National Women’s Law Center, says that the Young case can also help put a face on the problem of pregnancy discrimination, much like how Ledbetter’s case helped publicize the issue of pay gaps between men and women.
“Lilly Ledbetter epitomized and embodied what happens to a woman working throughout a lifetime who has been paid less systematically,” Greenberger said. “Peggy Young is at an earlier stage in her career and she epitomizes the kinds of barriers that are erected against women during their child-bearing years, including when they become pregnant.”
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