Working for Justice

Q&A with Professor Naomi Schoenbaum

Posted December 4th, 2014 by in Gender Discrimination and Harassment.

I am working with the D.C. Women’s Bar Association to host a panel discussion on January 29 about pregnancy discrimination and Young v. UPS, which was argued before the Supreme Court earlier this week.  (Blogger’s note: for more information on the case, check out Tuesday’s blog post.

Panelists will include a lawyer representing Peggy Young; a lawyer advising companies on employment matters; and George Washington University Associate Professor of Law Naomi Schoenbaum, whose research focuses on the intersection of work, family, and gender.

I will be posting additional information and panelist interviews later this month.  I was excited to talk with Professor Schoenbaum earlier this week, particularly in light of Wednesday’s Supreme Court arguments in Young.

Kate:  

Your research at GW focuses on the intersection of work, family, and gender.  Can you give me an example of what that means?

Professor Schoenbaum:    

While the press coverage of the 2011 Supreme Court case Dukes v. Wal-Mart focused primarily on the class action aspect, the case raised several employment discrimination and women’s employment issues that should be discussed.  For example, Wal-Mart had a policy that employees seeking a promotion to manager must be willing to relocate.  I have examined gender differences in geographic mobility and what that means for women’s employment opportunities.  Research indicates that more often than not in heterosexual couples, men are “drivers” and women are “trailers.”  In other words, men are more likely than women to be willing to relocate.  Relocation policies like Wal-Mart’s can thus have a disparate impact on female employees.

In the same vein, I have also looked at how stereotypes affect employers’ perceptions of mothers and how this is different from how employers perceive fathers.  A manager working under a Wal-Mart relocation policy may not groom a mother for a promotion to manager due to his or her assumption that she would not be willing to relocate her family, even though the manager would have no problem encouraging a father’s promotion, assuming he would be more than willing to relocate his family.

Kate:      

How will a decision in Young v. UPS affect pregnant workers?

Professor Schoenbaum:        

Pregnancy discrimination is a huge issue.  The number of pregnancy discrimination cases has increased significantly in recent years.  More pregnant women are working than ever before, and many pregnant women are in an economic position where they need to work to support themselves and their families.

That said, I think the importance of the case is overblown—many people think it is much more important for pregnant workers than it is.

Kate:        

Why do you think the case is less important than others do?

Professor Schoenbaum:      

There are three reasons why the significance of the case is overblown.  First, the case involves employers’ obligations to accommodate pregnant workers under the Pregnancy Discrimination Act (PDA) only.  It does not raise the question of whether and how employers are required to accommodate pregnant workers as a result of 2008 amendments to the Americans with Disabilities Act (ADA).

Peggy Young sought accommodations in the mid-2000s before the ADA was amended, and some authors have suggested that had the 2008 ADA amendments been in effect, the law should have required UPS to accommodate her, regardless of the PDA.

Kate:    

As a bit of background for our readers, accommodations for pregnant women can include temporary reassignment of duties (which Peggy Young sought because her doctor instructed her not to lift heavy packages); modifications of attire (as my colleague Matt Schmid wrote about in looking at a police officer whose pregnancy made it difficult for her to breathe under her bullet-proof vest); or even just allowing pregnant workers to take more frequent water and bathroom breaks.

Before we go on to talk about the other two reasons why the significance of this case may be overblown, can you talk about the differences between the PDA and the ADA?

Professor Schoenbaum:

Under the PDA, if an employer provides an accommodation for any employee, it must provide the same accommodation for pregnant employees.

Kate:      

This is Peggy Young’s case—UPS allowed workers who were injured on the job to do light-duty work but did not offer the same accommodation to Peggy when she was pregnant.

Professor Schoenbaum:      

Yes—under the PDA if the employer decides not to provide an accommodation to anyone, then pregnant workers are out of luck.  But some authors have suggested that under the ADA, UPS would have had to accommodate Peggy’s pregnancy regardless of whether it provided the accommodation to other workers.  If that is correct than the PDA wouldn’t matter.  Pregnant workers get better protections under the ADA.

Kate:      

Do we know whether this interpretation of the ADA amendments will hold?

Professor Schoenbaum:  

It is too soon to tell because courts have had little occasion to interpret the ADA amendments.  Before the ADA was amended in 2008, courts across the country were unified in deciding that the ADA did not cover pregnant employees.  But the amendments to the ADA broadened coverage for those with “temporary disabilities,” which could include pregnant women. But again, courts have not really had the chance to address the issue.

Kate:      

Some people and organizations have been resistant to use the ADA because it would characterize pregnant women as “disabled.”  Do you have thoughts on whether the framework of the Americans with Disabilities Act is the best way to address the issues of these women?

Professor Schoenbaum:     

I hear this issue raised a lot and I have a couple of thoughts.  First, if you’re a pregnant worker who needs an accommodation, you just want to be accommodated.  I’m not sure you’re going to care about the legal framework that gets you there.

Kate:                

If your doctor says you need to have a stool at your workstation to sit down occasionally, you’re going to be happy with any law that allows you have that stool to sit down, regardless of the name of the law.

Professor Schoenbaum:    

I think that’s probably true.  Some have theorized that saying pregnant women have a “disability” paints them in a light they don’t want to be painted in.  These women are experiencing physical changes that are normal for pregnant women—there’s nothing wrong with them.  I understand that, but at the same time our social model of “disabilities” attempts to remove that stigma.  Plenty of people who have “disability” do not have anything “wrong” with them.  They, like pregnant women, are not “better” or “worse,” just “different,” and the goal of the ADA is to integrate them into society and the workforce.  Pregnant workers are different, too—they are experiencing physical changes that alter what they are able to do.

Kate:

That makes sense.  What about the other reasons why Young is overblown?

Professor Schoenbaum:    

Second, if Peggy Young wins, and any accommodations employers provide must also be provided to pregnant workers, the case may motivate employers to get rid of these accommodations altogether.  That’s a cynical view, but it is a real possibility that workers would be in a worse position even if Peggy Young wins.

And third, how the Supreme Court interprets the PDA is less important in light of recent legislative movement on the issue of accommodations for pregnant women.  While the federal Pregnant Workers Fairness Act that would mandate reasonable accommodations has been stalled in Congress, twelve states have recently enacted legislation requiring accommodations for pregnant women.  For example, Peggy Young was from Maryland, a state that now has a law requiring the accommodations that UPS denied her.  A similar law in Washington, D.C. was signed by the mayor just last month.

These laws are gaining remarkable bipartisan support, and the efforts to pass them can create strange bedfellows.  Illinois recently passed a law by a unanimous vote—both Democrats and Republicans.  Even those who do not typically rally in support of women’s issues see the importance of protecting women’s roles as mothers, and conservatives and liberals are joining together to support these laws that protect the health and welfare of pregnant workers and their children.

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I will be posting additional information on the issues we will discuss during the January 29 panel later this month.  In the meantime, click here to learn more about how you can urge Congress to pass the Pregnant Workers Fairness Act.  To learn more about my work at Sanford Heisler in representing women who have suffered gender, pregnancy, and caregiver discrimination, check out my firm bio.

Kate Mueting

Kate Mueting

Kate Mueting is a Partner in the Washington, DC office of Sanford Heisler Sharp. Ms. Mueting is responsible for managing much of the KPMG gender discrimination litigation and also represents employees in other individual and class discrimination and overtime cases. Learn More

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