A Needed Accommodation

WASHINGTON -- Peggy Young's Supreme Court case sounds like a throwback to the "Mad Men" era, when employers weren't expected -- or required -- to welcome women in general and pregnant women in particular.

Unfortunately, Young's situation reflects the reality, especially for lower-wage workers, that many companies continue to balk at reasonable accommodations for pregnant employees.

Unfortunately, too, the policy argument here is clearer than the somewhat ambiguous law on which Young relies. If she loses at the high court, which hears her case Wednesday, Congress should step in to provide the necessary protections, as it did with Lily Ledbetter's employment discrimination case in 2009.

Young was a part-time driver for United Parcel Service in 2006 when, after in vitro fertilization, she became pregnant. Her doctor advised that she should not lift packages weighing more than 20 pounds during the first half of her pregnancy, and not more than 10 pounds afterward.

As a practical matter, this did not pose a problem: Young's route mostly involved letters and small packages. If she needed help, a driver who shared that route offered to take the heavy parcels.

But UPS not only refused to allow that -- it denied Young's request for transfer to temporary light duty, an accommodation routinely given to employees injured on the job, workers with disabilities, or those who are "medically unqualified" to drive and therefore lose their commercial license.

Proof that UPS could have provided similar flexibility for Young? After the Supreme Court agreed to hear her case, UPS announced that it was voluntarily changing its disability accommodations policy to cover pregnant women and make them eligible for light duty.

Not in time for Young, who had to take an unpaid leave of absence and lost her medical insurance. Her lawsuit claims that UPS violated the 1978 Pregnancy Discrimination Act, which provides that pregnant workers "shall be treated the same for all employment-related purposes ... as other persons not so affected but similar in their ability or inability to work."

Young's lawyers -- backed by the U.S. Department of Justice -- argue that this should be the end of the case. UPS accommodates three groups of employees "similar in their ability or inability to work," they contend, so the Pregnancy Discrimination Act requires that such protections be extended to Young.

"The PDA's import is plain," Young's lawyers told the justices. "When two sets of employees experience similar restrictions on their ability to work -- one because of pregnancy and the other because of some other condition -- the employer must not give any lesser accommodation to the pregnant workers than it gives to the non-pregnant workers."

Not so fast, said UPS. The company noted that it does not accommodate employees injured off the job, the category most analogous to pregnant women, and that the point of the pregnancy discrimination law was to ensure that pregnant women are treated equally, not better, than fellow employees.

"Because UPS treated [Young] the same as it did other employees with similar lifting restrictions resulting from an off-the-job injury or condition, UPS did not discriminate against [Young] on account of her pregnancy," UPS told the justices. While requiring accommodation "might make for good policy, it is not required by the PDA."

Young lost her case in the lower courts, and federal appeals courts have sided with UPS' interpretation. Uncomfortably for the Justice Department, it has defended the U.S. Postal Service's similar policy against pregnancy discrimination claims. Although the post office continues to treat pregnant employees differently from those with on-the-job injuries, "That is no longer the position of the United States," the department told the court.

I would interpret the law in light of its purpose, to eradicate discrimination based on pregnancy. Notably, the case has forged an unusual alliance between women's groups and right-to-life groups, who worry about women facing economic pressure to terminate pregnancies.

Indeed, with growing numbers of women serving as major breadwinners, the imperative for fair treatment is even greater. Half of all U.S. workers are women; 75 percent will become pregnant during their working lives.

Women in white-collar jobs may not need to worry: When my complicated pregnancies required months of bed rest, I didn't miss a paycheck. Those in blue-collar jobs may need legal protection to secure fair treatment. The case law is replete with jaw-dropping examples -- for instance, a fitting-room monitor refused permission to carry a water bottle despite medical advice to stay hydrated.

If accommodating her, and accommodating Peggy Young, isn't the law, it ought to be.

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Ruth Marcus' email address is ruthmarcus@washpost.com.