Ending Discrimination Against Pregnant Women: An Interview with Thomas Berg

Numerous pro-life organizations recently filed a friend of the court brief in the Supreme Court for an important case on the Pregnancy Discrimination Act of 1978, Young v. United Parcel Service. Among those organizations filing the brief was Democrats For Life of America (DFLA). Millennial editor Robert Christian, a senior fellow at DFLA, interviewed University of St. Thomas (MN) law professor Thomas Berg, who worked on the brief on behalf of DFLA.

What’s at stake in Young v. United Parcel Service?

The issue is how effective the Pregnancy Discrimination Act of 1978 (PDA) will be in protecting pregnant working women from discrimination–in this case, discrimination about who will be allowed temporary reassignment to light-duty work because of temporary physical limitations. The lower courts here essentially said that an employer doesn’t discriminate against pregnant employees unless it singles pregnancy out as a condition it won’t accommodate–even when it gives accommodation to several other conditions but denies accommodation to pregnancy. This issue matters a lot for the effectiveness of this law, because many employers accommodate some employees but not others: are employers allowed to treat pregnant employees as badly as the worst-treated other employees? And it matters a lot whether pregnant working women are vulnerable to losing their jobs or benefits. Almost 2/3 of women who’ve given birth in the previous 12 months are in the labor force, and 40 percent of working women with children under 18 are the sole or primary bread-winner for their families.

What are the facts of the case?

Peggy Young, a driver for UPS, became pregnant; after several months her doctor recommended that she not lift more than 20 pounds. Young requested a temporary reassignment to light-duty work, which UPS did for three major categories of employees with analogous limits on their ability to work: disabled workers, those with on-the-job injuries, and those with various medical conditions who’d lost their commercial drivers’ licenses. But UPS denied Young’s request; she had to take unpaid leave for several months, during which she was without employer-provided health insurance. She sued under the PDA, which states that pregnant employees must be treated “the same … as other [employees] who are similar in their ability or inability to work.” But the lower courts said that even though Young had been treated worse than the large categories of accommodated employees with similar limiting conditions, she not been discriminated against because UPS had not specifically named pregnancy as a non-accommodated condition and had denied accommodation to other workers as well, e.g. those with off-the-job injuries. In effect, the lower court said that “non-discrimination” here means the employer can treat pregnant workers as badly as the worst-treated employees, even when it treats a lot of other employees better.

How would you respond to those who say that your position relies on an overly broad reading of the Pregnancy Discrimination Act?

The language of the statute is clear: employers must provide pregnant women with the same accommodations that they provide to other employees who “are similar in their ability or inability to work.” The lower courts essentially said that pregnancy could be treated differently because it’s an off-the-job injury, whereas UPS accommodated, e.g., on the job injuries. The statutory test, however, is not about the source of the condition but rather the employees’ ability to work. And allowing employers to treat pregnant women as poorly as they treat their least-accommodated workers is not consistent with the statutory purpose of giving real protection to pregnant women. Congress viewed pregnancy as an important condition, not an unimportant one that can be treated just as badly as the least-accommodated condition. The record contains many recognitions that the right to bear and raise children is fundamental and should be protected from economic pressure caused by the threat of losing a job or benefits. When large categories of workers are already accommodated, giving similar accommodations to pregnant women is only fair and is not likely to impose major additional costs on employers.

What do you think it means that so many pro-life groups have joined together on this? Is there a growing sense that a Whole Life agenda is necessary to be genuinely pro-life?

First and foremost, it was important to remind the Court that one of the clear purposes of the PDA was to protect women from economic pressure to terminate their pregnancies in order to keep their jobs or benefits–as then-Senator Biden put it, to protect women, especially low-income women, from being “encouraged to choose abortion as a means of surviving economically.” Back in 1978, pro-life groups joined pro-choice groups in supporting the PDA; the current case is important enough to the PDA’s effectiveness that many pro-life groups thought it important to speak again to support the statute’s purposes and effectiveness. It shows the importance of the issue here that 23 pro-life groups, with differing approaches and differing views on many other matters, issues, joined this brief. It’s a strong statement: pro-life groups believe that supporting pregnant women (including through effectively enforcing non-discrimination laws) is fundamentally pro-life.

Is this also a good area where people across the abortion divide can find common ground?

I think that’s true now, as it was in 1978 when the PDA was enacted. Pro-life and pro-abortion-rights groups come at this from different underlying views, but there’s an overlapping agreement that women shouldn’t be pressured by economic vulnerability into having abortions. The purpose of the brief is to argue for the proper interpretation of this case. But the filing of briefs across the abortion divide could have secondary effects. Beyond this case, there are other social and policy issues about how the workplace can become more equal and fair for women (and men) who are raising families. The attention given to the filing of these briefs could be an encouraging indicator that bipartisan, overlapping support is possible on these issues.