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Pregnancy: a fireable offense?

Tomorrow, the U.S. Supreme Court will hear Young v. United Parcel Service, a case in which an employer was permitted to suspend without pay or insurance a pregnant employee because she could not lift more that 20 pounds. Ms. Young's job for UPS was collecting and delivering letters and packages sent by air. Her typical route covered Annapolis, Davidsonville and Calvert County. In suspending her, UPS explained that company policy required all employees to be able to lift 70 pounds unless they had been injured on the job.

Judge Deborah Chasanow of the U.S. District Court for the District of Maryland at Greenbelt followed prior cases to deny Ms. Young's challenge to her suspension. Whether those cases correctly interpreted the law as it has evolved since 1964 is the issue that the Supreme Court will be deciding.

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Beginning in 1964, U.S. laws have protected some, but not all, pregnant workers. Title VII of the Civil Rights Act prohibits employers with 15 or more employees from discriminating on the basis of sex, as well as race, color, national origin and religion. Until 1976 lower courts had held that Title VII applied to pregnancy. That year, however, the Supreme Court approved an employer's disability plan that covered all disabilities except pregnancy. The court reasoned that discrimination because of pregnancy was not discrimination because of sex.

Two years later Congress amended Title VII: "The terms 'because of sex' or 'on the basis of sex' include, but are not limited to, because of or on the basis of pregnancy … ; and women affected by pregnancy … 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." Since Title VII prohibits "an employer ... to discriminate against any individual with respect to his ... sex," the effect of the amendment is to prohibit an employer from discriminating "with respect to" pregnancy.

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While that amendment is known as the Pregnancy Discrimination Act, it has not prohibited many of the adverse actions that employers take against pregnant women because the definition of discrimination is tricky. Courts have held that to prove discrimination, an employee must show that she is being treated less well than another "similarly situated" employee, often quoting from a 1974 case: "The Pregnancy Discrimination Act does not … require employers to offer maternity leave or take other steps to make it easier for pregnant women to work. … Employers can treat pregnant women as badly as they treat similarly affected but nonpregnant employees."

Finding a "similarly affected but nonpregnant employee" may not be possible. Some pregnancy symptoms are unique. Even where a nonpregnant person could have the same symptoms, that person might not work, or have worked, for the specific employer.

Other statutes could protect pregnant women's jobs. The Americans with Disabilities Act requires employers to "make it easier" for disabled employees to work by providing accommodations when possible. Unfortunately for pregnant women, pregnancy is not considered a disability because it is temporary.

The Family and Medical Leave Act provides job protection for some pregnant women, but far from all. The FMLA requires employers to give both men and women up to 12 weeks in a year for the birth of a child, a serious medical condition or other matters. However, only employers with 50 or more employees must comply. Compliance does not require employers to provide paid leave, nor any leave to newly hired or part-time workers. In Ms. Young's case, because UPS would not let her work, she exhausted her 12 weeks of leave before her child was born.

The U.S. Court of Appeals for the Fourth Circuit, which affirmed the District Court, was concerned that if it held otherwise, it would "transform an antidiscrimination statute into a requirement to provide accommodation to pregnant employees, perhaps even at the expense of other, nonpregnant employees." Those nonpregnant workers would be employees, not injured on the job, who temporarily need light work. If UPS does not want to disadvantage those workers, nothing prohibits it from giving them the same accommodation.

If the Supreme Court interprets the Pregnancy Discrimination Act as allowing women to be fired because they are not like employees injured on the job or because of some other "neutral policy," what message will that send to working women? Is it that employers can, at times, make a woman choose between a baby or a livelihood?

Candace Kovacic-Fleischer is an emirita professor of law at Washington College of Law within American University. Her email is kovacic@wcl.american.edu.

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