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SUPREME COURT LEAVES (MOST) PREGNANCY ACCOMMODATION CASES TO THE JURY

Getting pregnant and raising children isn’t something American employment law does much to encourage. The right to pregnancy leave is a meager 12 weeks and only covers larger employers, and, alone among industrialized nations, is unpaid. The pay disparity between men and women is largely the product of women being penalized for taking time off for having children, and discrimination against parents is rampant. Our ruling class views having children as a personal luxury, rather than as ensuring the future of humanity.

However, in a bit of good news, the Supreme Court today leveled the playing field a bit in favor of pregnant workers. In Young v. United Parcel Service, the Court had to decide if the Pregnancy Discrimination Act (PDA), 42 U.S.C. §2000(e)(k), requires an employer to provide pregnant employees with the same light-duty options that it supplies to other employees who require light duty for other reasons. Peggy Young, a UPS driver, needed light duty because of her pregnancy. UPS had a practice of giving temporary light duty to employees who needed an accommodation of a disability under the Americans With Disabilities Act (ADA) and in a few other instances (remember, a normal pregnancy is not protected under the ADA). But, UPS’ policy was not to give light duty to pregnant employees, despite the PDA’s requirement that employers treat “women affected by pregnancy…the same for all employment-related purposes..as other persons not so affected but similar in their ability or inability to work.”

A clear and simple decision in this case would have been that if an employer gives disability accommodations to some employees, it must give them to pregnant employees. However, the majority recoiled from the idea that pregnant employees be always treated just as well as those other, fortunate employees who may enjoy accommodations – that would be granting “most-favored-nation” status to pregnant employees, and just wouldn’t do. According to the Court, there is no way that Congress intended to put pregnant employees at the top of the heap as far as access to job accommodations goes. Perhaps the Court is right.

However, the Court took a position that, practically speaking, will still entitle pregnant employees to at least most of the accommodations offered to their fellow employees. The Court held that a pregnant employee claiming discrimination in access to light duty or other job accommodations can get to a jury if she can show that “the employer’s policies impose a significant burden on pregnant workers” and that the employer’s “legitimate, nondiscriminatory” reasons for doing so are not strong enough to justify the burden. What constitutes a “significant burden” or strong enough (allegedly) nondiscriminatory reason will surely keep the district and circuit courts busy for years to come. But the Supreme Court today made it a lot harder for employers to get summary judgment on a pregnancy discrimination claim, and that’s good news for everybody.