At the Supreme Court: The Meaning (and Meaningfulness) of Pregnancy Non-Discrimination

(From Tom Berg:) The Court heard oral argument Wednesday in Young v. United Parcel Service, the case involving accommodations for pregnant workers under the Pregnancy Discrimination Act of 1978 (the PDA).  As I've mentioned in a prior post, Peggy Young had sought and been denied the same sort of light-duty accommodation that had been given to workers with similar work limitations from other causes, such as on-the-job injuries, disabilities under the ADA, and conditions or circumstnaces (medical problems, drunk-driving convictions) that led to a driver-employee's loss of a Department of Transportation commercial truck-driving license.  And as I've detailed, 23 pro-life organizations filed an amicus brief arguing that the PDA should be interpreted to require pregnancy accommodations when the employer made accommodations for other such categories of workers who were (in the words of the statute) "similar in their ability or inability to work."

I did a summary of the case and the pro-life brief Wednesday for Christianity Today.  Many media outlets, including the N.Y. Times and the Wash. Post, remarked on the convergence in this case of pro-life groups and pro-choice feminist groups (it was striking, at the press conference after the argument, to see Galen Carey of the National Association of Evangelicals followed by Marcia Greenberger of the National Women's Law Center, both expressing support for strong protections for pregnant women).  As I said in my CT piece,

I hope that the message of this brief will resonate, and draw attention, in the broader society: supporting pregnant women is a pro-life cause, and pro-life groups of all kinds are strongly committed to it.

Of course, oral argument focused on the key statutory-interpretation question: are the text and purpose of the PDA violated only when the employer disfavors pregnancy facially in a policy or by virtually singling it out for denial, or are they also violated when the employer makes accommodations for workers whose conditions, albeit from another source, make them "similar in their ability or inability to work"?  The arguments got a little intricate, and some justices (Roberts, Kennedy) said less in this argument than usual, giving little or no indication how they were inclined.

It seemed clear to me that UPS's lawyer, Caitlin Halligan, had an inadequate answer to the key challenge to her position: what distinct role is served by the statutory clause saying pregnant workers must be treated the same as non-pregnant workers "similar in their ability or inability to work"?  This so-called "second clause" of the PDA is conjoined by "and" to the first clause, which makes clear that pregnancy discrimination is a form of sex discrimination.  According to Halligan, the second clause means that in comparing workers to determine whether discrimination occurred, "you don't look at women and men," but rather at pregnant and non-pregnant workers.  But as Justices Ginsburg and Kagan both immediately observed, the first clause already does that by saying that pregnancy discrimination counts as sex discrimination.  UPS failed to show how its position avoids making the second clause redundant: and it shouldn't be redundant, because the "and" that leads into it strongly implies it does independent work.

At the same time, the justices questioned Sam Bagenstos, U Michigan lawprof arguing for Young, and Solicitor General Verilli, arguing for the US, on whether their position meant the employer who accomodates any single employee with light-duty work must thereby accommodate all pregnant employees.  I believe both gave sound limiting principles: the triggering accommodations must be for conditions that create similar limitations on ability to work; what is forbidden is to differentiate those other sources of the limitations from pregnancy as a source.

That still leaves a crucial question in the case, and Justice Breyer directly asked about it.  Employers accommodate some conditions that create similar limits as pregnancy, and not others.  To treat pregnancy "the same," to which other conditions should it be compared: those that are accommodated, or those that are not?

Readers who follow Free Exercise Clause litigation may see the resemblance to the question whether a law is "neutral and generally applicable toward religion" when it accommodates citizens' other needs but not the needs of their religious conscience (e.g. in the leading case, Fraternal Order of Police v. Newark, 170 F.3d 359 (3d Cir. 1999), allowing police officers to wear beards for medical reasons but not for religious reasons).  The 3d Circuit, in Fraternal Order and other opinions by then-Judge Alito, held that such a policy devalued religion compared with other considerations--an approach inconsistent with religion's express constitutionally protected status--and thus the law was not "generally applicable" and was subject to strict scrutiny.  I was glad to hear Sam Bagenstos, at the very conclusion of his argument (tr. 59-60), analogize the PDA to Alito's  Fraternal Order rule.

The pro-life brief (at 28) answers the question this way.  After noting that pregnancy implicates the fundamental interest in being able to bear children and have a family without the economic pressure of possibly losing a job, the brief adds:

[T]his case requires a determination about the meaning of pregnancy discrimination itself: that is, whether employers must treat pregnant women as well as the employees who receive the greatest accommodations, or whether they may treat women as badly as non-pregnant employees who receive the fewest accommodations. The answer to that question is clear in light of Congress’s recognition of the importance of the interest in being able to have children and also work: pregnancy should be treated the same as conditions that are important enough to accommodate.

And here’s how Bagenstos answered it, in the last words of his argument (echoing the "devaluation" theme from Fraternal Order): 

 [T]he purpose of this statute is to say to employers, as Justice Kagan said, you have to treat pregnant workers as just as valued employees as anybody else, and if you think it's valuable to keep these employees on the job who are injured on the job because they keep valuable work, valuable knowledge within the company, do that for pregnant women.