Total Request Live: Young v. UPS

A lawyer friend of mine requested that I blog on Young v. UPS, set for argument before the Supreme Court tomorrow. Young involves a suit by a UPS employee who was denied accommodations during the course of her pregnancy. I told her I didn't know if I had much to say on the case, and besides -- it's the Supreme Court hearing a case about a pregnant, working-class woman. I'm sure it will be fine.

Nonetheless, like a fading radio station I'm so excited to actually get a request that I'm going to play it out.

Young's suit relies on the Pregnancy Discrimination Act (PDA) which, as the name implies, bars discrimination "on the basis of pregnancy, childbirth, or related medical conditions." If you're thinking that it's nice that the United States has such a law -- don't: the reason we have a specific law barring pregnancy discrimination is because the Supreme Court was adamantly insistent that pregnancy discrimination obviously was not a form of sex discrimination. That my students' jaws invariably hit the floor when I tell them that is an excellent illustration of why limiting "discrimination" to behaviors which favor all of group X at the expense of all of group Y doesn't really capture our full intuitions regarding the meaning of the term.

In any event, the PDA superseded these opinions and instead defined "because of sex" to include pregnancy and related conditions. The PDA does not specifically provide for accommodation of pregnant employees. What it does do is require equal treatment of pregnant employees and others "similar in their ability or inability to work." Young's argument is that UPS does accommodate some employees who are unable to work their normal job functions, through the Collective Bargaining Agreement and in compliance with the Americans with Disabilities Act. By refusing to accommodate her as well, UPS is treating her pregnancy differently from other statuses which affect one's "ability or inability to work." And that, in turn, violates the PDA.

My friend is particularly concerned about a negative ruling in Young because of its perverse effects on working-class women (namely, the ease at which it allows subtraction of the "working" part). What better way to ensure more children are born into perilous economic circumstances than by knocking one of their parents off the job rolls? In terms of concrete effect on vulnerable women, she told me, this might be a bigger deal than Hobby Lobby.

The main cause for worry, though, is that this is a pregnancy case. And as noted above, the Supreme Court has been remarkably hostile to recognizing the interests of pregnant women. The initial ruling that "pregnancy discrimination" was not "sex discrimination", after all, was in contravention to every appellate court in the country which had considered the question. One reason Young may not be getting the attention Hobby Lobby did is precisely because the former is so explicitly blue-collar -- attorneys and accountants don't typically need to be relieved from hard physical labor during their pregnancies, and to the extent they do need certain accommodations their employers are far more likely to grant them without a fuss. But another possible reason is that the legal community perhaps never internalized the idea that it could expect the courts to provide for robust pregnancy protections. Since we never really believed that we "had" them, there's less of a sense that we're "losing" them. That's in contrast to Hobby Lobby, where it felt like a great progressive victory was taken away from us. It's simple loss-aversion.

Of course, my cynicism may be unwarranted here. It's not every day, after all, that you get the Concerned Women for America lining up on the same side as the Leadership Conference on Civil Rights. Judicial skepticism aside, protecting pregnant women tends to unite a pretty wide range of political constituencies -- including historic adversaries on gender issues. It presents the social left plus the social right standing shoulder to shoulder against big businesses. Again, what could possibly go wrong?