Pregnant women won a somewhat surprising victory at the U.S. Supreme Court Wednesday. The court's four liberals got help from Chief Justice John Roberts, who joined the majority opinion by Justice Stephen Breyer, and a surprise concurrence in the judgment from Justice Samuel Alito, who rarely crosses over to the liberal side.
At issue in the case was the Pregnancy Discrimination Act. That law prohibits discrimination based on pregnancy and childbirth. Then, in a separate provision, it requires employers to treat pregnant women the same "as other persons not so affected but similar in their ability or inability to work."
Peggy Young is a UPS driver whose doctor told her not to lift more than 20 pounds during the first 20 weeks of her pregnancy and no more than 10 pounds after that. UPS ordinarily requires drivers to be able to lift 70 pounds unaided and 150 pounds with assistance.
Young asked for an accommodation. She pointed out that UPS makes accommodations for drivers injured on the job, who lose their Department of Transportation certification or who suffer from a disability covered by the Americans With Disabilities Act. It would be discrimination to deny the same accommodation to her, she reasoned.
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UPS responded that Young didn't fall into any of those categories. UPS therefore was treating her the same as someone who wasn't pregnant but also couldn't lift 70 pounds. Such a person would lose his job.
Breyer's opinion rejected both Young's approach and that of UPS. To follow Young's approach, he said, would be to give pregnant women a "most-favored-nation" status, under which if anyone was ever accommodated, pregnant women should get the same accommodation. To do what UPS wanted, however, would be to act as though the accommodation provision of the Pregnancy Discrimination Act added nothing to its general prohibition on discrimination against pregnant women.
Breyer struck a pragmatic compromise. He said that the pregnant woman could begin her discrimination case by showing she had sought an accommodation and been denied while others were granted accommodation — the same way Young in fact began her case.
Then the burden will shift to the employer to explain why no accommodation was granted. The court said the answer "cannot consist simply of a claim that it is more expensive or less convenient to add pregnant women to the category of those ... whom the employer accommodates." Presumably employers would respond by explaining they are legally required by a different law to accommodate those they do.
Now the burden will shift back to the pregnant plaintiff. She can, Breyer said, get the case before a jury "by providing evidence that the employer accommodates a large percentage of nonpregnant workers while failing to accommodate a large percentage of pregnant workers." According to Breyer, a jury could reasonably conclude that UPS was discriminating against pregnant women.
But why did Roberts and Alito abandon the other conservatives?
Alito dismissed the relevance of UPS's accommodation of drivers injured on the job and drivers covered by the Americans With Disabilities Act, because UPS had to pay workers' compensation for those injured on the job and was legally required to accommodate ADA-qualified workers. But he balked when it came to drivers who lost their certifications, a category that could include people injured off the job. Alito thought that this smacked of discrimination, and wanted to allow a jury to consider whether UPS was in fact discriminating against pregnant women.
As for Roberts, the clue lies in a throwaway sentence of Breyer's opinion where he notes that in 2008, after Young's case was brought, the ADA was amended to include impairment that substantially limits the ability to lift, stand or bend. The implication is that pregnant women who can't lift heavy objects would now be protected.
Roberts, in other words, gave the liberals a victory that might have no relevance in the real world. He looked nonpartisan without cost.