Last week, in a 6-3 ruling authored by Justice Stephen Breyer, the Supreme Court in Young v. UPS gave Peggy Young and lots of pregnant workers like her a victory. Peggy worked as a driver at UPS. When she got pregnant, she informed UPS that her doctor had advised her to avoid lifting more than 20 pounds during her pregnancy. However, Peggy was pushed onto unpaid leave because UPS refused to accommodate her, even though it accommodated other groups of workers, including those who required accommodation under the Americans with Disabilities Act, those who lost their Department of Transportation certification, and those who needed lifting restrictions due to an on-the-job injury.
Peggy sued UPS for violating the Pregnancy Discrimination Act (PDA)—which states that women affected by pregnancy, childbirth, or related medical conditions must be treated the same for all employment purposes as workers not so affected, but who are similar in their ability or inability to work. She argued that UPS cannot accommodate just some workers and not pregnant workers, when pregnant workers have similar restrictions to those who are accommodated. UPS argued that because there were also various non-pregnant workers they did not accommodate, and because they did not explicitly single out pregnancy for lesser treatment, they did not violate the PDA. The Supreme Court rejected UPS’s argument, and ruled that a jury could find an employer violated the PDA based on the employer’s accommodation of a large percentage of non-pregnant workers but refusal to accommodate pregnant women. Accordingly, the Supreme Court vacated the decision of the Fourth Circuit, which had ruled against Peggy, and sent it back to the court for reexamination.
While, for pregnant workers, this is an important victory, employers, employees, and courts will have to answer a lot of questions in figuring out when a pregnant worker is entitled to accommodations under the standard set out in Young. What constitutes a large percentage of workers? Must the employer already be accommodating a large percentage of non-pregnant workers with physical limitations? Is the employer obligated to accommodate pregnant workers where it has a policy that could potentially accommodate a large percentage of non-pregnant workers with physical limitations? What other kinds of evidence may prove a discriminatory refusal to accommodate? The Supreme Court allowed Peggy’s case to go forward, but for many other pregnant workers and their employers, the path forward may not be quite so clear.
That is exactly why we need the Pregnant Workers Fairness Act (PWFA)—a bill introduced in the last two congresses and soon to be reintroduced. The Supreme Court took us a good part of the way towards ensuring clarity and justice for workers who are affected by pregnancy, childbirth, or related medical conditions, and the PWFA will take us the rest of the way. Under the PWFA, an employer would be required to provide reasonable accommodations for limitations arising out of pregnancy, childbirth, or related medical conditions if the accommodations did not impose an undue hardship on the employer. It’s that simple. The PWFA incorporates the accommodation language from the Americans with Disabilities Act—a law is already familiar to employers—to protect pregnant women with physical limitations from being pushed onto unpaid leave, transferred, or fired because they are pregnant. Where the Supreme Court’s decision in Young might allow some employers to claim they are confused about their obligations, the PWFA makes them absolutely clear.
Indeed, providing accommodations to pregnant workers who need them would provide real benefits to employers as well as workers. By providing reasonable accommodations—many of which come at a nominal cost, such as allowing an employee to carry a water bottle to stay hydrated, or to sit on a stool during a long shift—employers get to retain valuable employees, save money on recruitment and training, and oversee a more productive workforce.
In fact, the PWFA is such a commonsense solution that so far 12 states and several municipalities have passed their own versions of the law. Many of these laws have been passed unanimously and with broad bipartisan support. And more states are working this year to pass pregnancy accommodations laws, such as Nebraska, North Dakota, and Massachusetts. If the states can do it, certainly Congress can pull together on this bipartisan issue to support women, families, business, and the economy.
The Supreme Court’s decision in Young affirmed that employers cannot refuse to provide pregnant workers with rights to accommodation that most non-pregnant workers enjoy. Congress must strengthen and reaffirm that decision by passing the PWFA now. Accommodating pregnant workers has not been a partisan issue in the states, and it shouldn’t be a partisan issue in Congress—and no woman should have to choose between the health of her pregnancy and her paycheck.