Working for Justice

Women Work and They Get Pregnant

Tomorrow, the Supreme Court will hear oral argument in Young v. UPS, a case about a former UPS driver whose healthcare provider recommended she not lift packages over 20 pounds during her pregnancy.  She asked UPS to accommodate this restriction by either allowing her to continue doing her current job and let her colleague take the few packages per month that exceeded that amount on a different truck or by giving her the same “light duty” assignments it gave other employees who need temporary accommodations.

In response, the company gave Ms. Young a “choice”: she could ignore the medical advice and continue to work without accommodation, or she could take unpaid leave. Ms. Young’s case questions whether her employer’s refusal to provide an accommodation violates the Pregnancy Discrimination Act.  The Pregnancy Discrimination Act of 1978 requires an employer treat pregnant employees the same as other employees who are “similar in their ability or inability to work.”  Based on the simple language of this decades old law, it is pretty clear that what UPS did wasn’t legal.

However the Supreme Court rules (and, unfortunately, that’s an open question), denying accommodations to pregnant women is bad policy. It’s bad for business, bad for the economy and bad for American families.  The obvious, undeniable truth is that women work, and they get pregnant.

Seventy-five percent of women entering the workforce today will become pregnant at least once while they are employed.  I want to pause on that statistic for just a moment—this is an issue that affects three out of four working women.  In reality, of course, the effects of an employer’s failure to accommodate the needs of pregnant women are farther ranging still.  Four in ten mothers are primary breadwinners and another 25 percent contribute a significant portion of their household income.  Women’s earnings are undeniably crucial to the well-being of American families.

Moreover, any reductions in earnings of working women are felt most acutely by those families dependent solely upon the income of a working mother or living closest to the poverty line.  Often, those two categories overlap.  In communities of color, the financial contributions of working mothers are particularly critical. More than three million African-American families and more than two million Latino families rely on a female head of household for financial security.  The unfortunate truth is that those pregnant women most likely to require accommodations are also most often those workers least able to take unpaid leave and least able to survive losing a job.  They also work in environments with particularly inflexible rules and thus are in environments in which employees most heavily rely on legally-mandated accommodation.

With women’s earnings playing an ever-increasing role in the financial health and stability of families and with improvements in prenatal care, more women than ever work late into the pregnancy.  Eighty-eight percent of first-time mothers work into the last two months of pregnancy and eighty-two percent worked into the last month of pregnancy.   With more women working and working longer during pregnancy, it is inevitable that the demands of some jobs and some pregnancies necessitate reasonable accommodations not unlike those traditionally given to other groups of workers.

Currently, a quarter of a million pregnant workers are denied requests for accommodations each year—and those are just the ones who ask.   Others, fearing retaliation from their employers and facing a reality that they literally cannot afford to risk their existing family’s financial security, attempt to work without requesting an accommodation at all.   We’ve explained the health risks of this decision in an amicus brief to the Supreme Court on behalf of health care providers.  The short of it is that working without a medically-necessary accommodation is dangerous for a woman, her pregnancy, and can have lasting effects on her child.

On the other hand, when a pregnant woman is fired or forced to quit when an employer refuses accommodations, it is substantially more difficult for her to find another job.  It is well known that employers are less likely to hire a pregnant woman.  This discrimination continues long after a woman has given birth: mothers are 79% less likely to be hired, half as likely to be promoted and offered an average of $11,000 less in salary when they are hired than women without children.

When passing the Pregnancy Discrimination Act, Congress did so in the context of explicitly recognizing the “devastating impact which the loss of a working mother’s salary will have on the family unit.”  With children and families far more reliant on the incomes of working mothers now than they were nearly four decades ago, the stakes for American families are that much higher.  The choice that UPS offered Ms. Young, and the choice that employers ask women across the country to make every day is whether to (a) jeopardize the health and wellbeing of themselves and their pregnancies, or (b) give up jobs and incomes that are necessary to their family’s financial security.  Hard-working American women should not have to choose between the physical and financial safety of themselves or their children.  If an employer chooses to accommodate the physical limitations of some workers, it cannot exclude similarly affected pregnant employees: that is discrimination.

While maintaining that it has a legal right to deny reasonable accommodations to pregnant woman, UPS has changed its policy.  A company spokesperson explained, “”UPS believed it was appropriate to update its workplace policies so that we can attract and retain the best workforce we can.”

Sanford Heisler Sharp, LLP

Sanford Heisler Sharp, LLP

Sanford Heisler Sharp, LLP is a nationwide litigation law firm with offices in New York, Washington, DC, San Francisco, San Diego, Nashville, and Baltimore. We represent individuals against powerful interests. We act as a private attorney general in support of the private and public good. Learn More

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