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Bad Back? Take a Break. Pregnant? Take a Hike.

The Pregnancy Discrimination Act (PDA) requires that employers treat pregnant employees at least as well as they treat employees “similar in their ability or inability to work”—so Peggy Young, a part-time UPS driver who needed to avoid lifting more than twenty pounds during part of her pregnancy, might have thought that her employer was bound by law to make that accommodation, given that UPS had a policy of giving light duty to various other employees who were physically unable to do their usual job. Under UPS’s policy, employee who had been injured on the job were entitled to light duty, as were employees with a qualifying disability under the Americans with Disabilities Act (ADA), and employees who were injured off the job and failed a Department of Transportation medical exam. But UPS disagreed and forced her to take unpaid leave for the duration of her pregnancy. As a result, she also lost her medical coverage, months prior to the birth of her child. Then, she lost her pregnancy discrimination case, when the district court ruled that UPS could adopt “pregnancy blind” rules that allowed some employees similar to Peggy Young in their ability to work to go on light duty, while blocking Peggy Young from receiving the same accommodation.

The National Women’s Law Center joined the ACLU Women’s Rights Project and others today in a friend-of-the-court brief urging the Fourth Circuit Court of Appeals to take the language of the PDA seriously and reverse the district court. Congress adopted the PDA in 1978, forcefully rejecting Supreme Court decisions that concluded that discrimination on the basis of pregnancy did not constitute unlawful sex discrimination, but rather discrimination between “pregnant and nonpregnant persons.” The PDA states that discrimination on the basis of pregnancy, childbirth, or related medical conditions constitutes sex discrimination and further provides that pregnancy cannot be treated worse than other disabilities that similarly affect an employee’s ability to do the job. In passing the PDA, one of Congress’s targets was employee benefit programs that provided insurance coverage, for example, to cover a host of disabling conditions, but not pregnancy.

The language of the PDA requires that pregnant women be treated as well as those “similar in their ability or inability to work,” thus defining the sole criterion for comparison to be ability to do the job. Just as this plain language prohibits employers from adopting policies that, for example, only permit sick leave to be used for injuries and illnesses other than pregnancy- and childbirth-related conditions, it also prevents them from relying on additional criteria not set out in the PDA to deny accommodations to pregnant women (such as an on-the-job injury requirement) while providing them to those similar in their ability to work. When courts like the trial court in Peggy Young’s case conclude that pregnant workers are not similar in their ability to work to those with equivalent restrictions resulting from an on-the-job injury, they ignore the standard set out in the PDA and force women like Peggy Young out of work.

The lower court decision in Peggy Young’s case is also quite troubling in that it suggests that employees accommodated under the ADA are not comparable to pregnant workers, and that employers therefore need not provide equivalent accommodations to pregnant women who are similar in their ability to work to these employees with disabilities. (Pregnancy has generally been held not to be a qualifying disability under the ADA.) Neither the language nor the purpose of the PDA supports this approach. This point is more important for pregnant women than ever, given that the ADA Amendments Act of 2008 has recently expanded the ADA’s coverage significantly. Today, the ADA requires employers to accommodate a range of disabilities that mimic typical pregnancy symptoms—for example, a temporary back injury that leaves an employee unable to lift more than 20 pounds, or a condition that causes individuals to experience shortness of breath when walking reasonable distances. If courts hold employers’ treatment of employees accommodated under the ADA to be legally irrelevant to employers’ treatment of pregnant women, employers will once again have a license to treat pregnancy worse than they treats any comparable temporary disability.

Luckily, the Equal Employment Opportunity Commission is examining this very problem. Three weeks ago, I testified before the EEOC about the difficulties some pregnant workers face when seeking minor modifications that would allow them to continue to do physically demanding jobs. As I said then, it is critical that the EEOC provide guidance to courts, employers, and employees that sets out employers’ obligations to provide the same accommodations to pregnant women as the ADA requires them to provide for workers with disabilities and that makes clear that on-the-job injury requirements can’t be used to deny accommodations to pregnant workers. Hopefully, the EEOC will speak on this issue with a strong voice. Meanwhile, the Fourth Circuit Court of Appeals can reverse the lower court’s decision and give Peggy Young the opportunity to seek justice. It should be faithful to the language and purpose of the PDA and do just that.

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