In a case currently before the Supreme Court, a Maryland UPS driver whose doctor’s note recommending “light duty” for the duration of her pregnancy was refused by her employer is seeking damages under the 1978 Pregnancy Discrimination Act. Support for the plaintiff has come from prominent groups on both the political left and right. 23 right-to-life organizations and 120 Democratic members of Congress respectively signed amicus curiae (“friend of the court”) briefs on the plaintiff’s behalf. Unfortunately, this support for pregnant workers’ rights does not cross the congressional aisle; no Republican co-sponsors have emerged for the President Obama-backed Pregnant Workers Fairness Act, which was introduced to both the house and senate in May. The bill was intended to “eliminate discrimination and promote women’s health and economic security by ensuring reasonable workplace accommodations for workers whose ability to perform the functions of a job are limited by pregnancy, childbirth, or a related medical condition,” but critics say it places an unnecessary burden on employers.

 

Pregnant workers are often forced by their employers to take unpaid medical leave due to fears of liability and unwillingness to make reasonable accommodation. In the pending Supreme Court case, UPS invoked its agreement with the Teamsters union, which doesn’t allow light-duty re-assignments for “off the job injuries,” which is how the company classified pregnancy. Yet the question must be asked: is pregnancy an injury? A disability? Medical experts believe that limiting high-exertion physical activity during pregnancy improves health outcomes, yet classification of pregnancy as a “disability” to sanction changes in work is a matter of policy rather than medicine.

 

Like disabled workers, pregnant workers often face discrimination and exclusion, and activists have pursued state and federal legislation to allow pregnant workers the same rights accorded to those whose work is limited by medical disability. While pregnancy is not considered a disability for purposes of the Americans with Disabilities Act, as of July 14, the Equal Employment Opportunity Commission’s “enforcement guidance” rules define pregnancy as a workplace disability. Yet it will be the Supreme Court’s eventual ruling that will determine what those guidelines mean for pregnant workers – if they are considered disabled, what kind of accommodations must employers afford? A brief filed by Americans United for Life on behalf of the plaintiff explained the crux of the matter thusly:

this 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.

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Theo Schall

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