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.

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The Clergy Speaks – Father James Martin, SJ by Pete Socks: “What five books would you recommend as must-reads for Catholics today? I left the responses open to current or classic books with the only restriction being that the Bible and the Catechism could not be used as they are a given. This week we welcome Father James Martin, S.J. author and editor at large at America, the national Catholic magazine.”

I Don’t Want to Smell Your Pot Smoke and I Don’t Think it Should Be Legalized by Jennifer Garam: “One person’s ‘right’ to smoke pot shouldn’t trump other people’s right to breathe clean air, or comfortably inhabit the apartment they pay rent for. And I can only imagine that legalizing pot will make it that much more prevalent, and leave those who are affected by the secondhand smoke with that much less recourse to protect themselves.”

There’s Nothing Wrong with the Mommy Track by Rachel Simmons: “Our culture sings in only two keys about how successful women manage motherhood and work: either you’re driving a hard line to the C-suite, parking the crib in your corner office, or you’re shredding the Mommy track. But what about those of us who are still working hard, and who live and work somewhere between the two? I love being a mom, and I also love (and can’t afford not to) work.”

Past time to solve hunger in America by Bob Aiken, Ellie Hollander, Tom Nelson and Lisa Marsh Ryerson: “Hunger in America is a solvable problem through the collaboration of government, industry, nonprofits and generous individuals—but we must do more.”

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Bet on Africa rising by Michael Gerson: “Africa is not a brand. It is an impossibly large and diverse continent, which includes both Ebola hot zones and six of the top 10 fastest growing economies in the world.”

Pope Francis and the New Values Debate by John Gehring: “Pope Francis understands that talk is cheap. Families need more than lofty rhetoric.”

Why Modern Man Needs a Dose of Dawson by Jonathan Liedl: “As Christianity is the bridge between the spiritual and the material, Dawson is a bridge between religious truth and historical analysis.”

These Are The Things Men Say To Women On The Street by Alanna Vagianos: “Street harassment is defined as any unwanted gawking, whistling, commenting and/or physical contact of a sexual nature — something that up to 99 percent of women report experiencing in their lifetimes. In case you needed proof that the sidewalk can be a hostile place for women, these are just a few of the things female editors at The Huffington Post have heard while walking down the street…”

Is a Hard Life Inherited? by Nicholas Kristof: “This crisis in working-class America doesn’t get the attention it deserves, perhaps because most of us in the chattering class aren’t a part of it. There are steps that could help, including a higher minimum wage, early childhood programs, and a focus on education as an escalator to opportunity. But the essential starting point is empathy.”

No, America Is Not Turning Libertarian by Jonathan Chait: “Older Americans oppose ‘bigger government’ in the abstract by a margin of some 40 percentage points. That young voters actually favor ‘bigger government’ in the abstract is a sea change in generational opinion, not to mention conclusive evidence against their alleged libertarianism.”

‘Dead Man Walking’ nun: ‘Botched’ executions unmask a botched system by Moni Basu: “Prejean wants Americans to understand that it’s not just the act of killing that was botched in the cases of Wood and Lockett. She believes the entire death penalty system is botched — from the moment an arrest takes place to the trial, conviction, appeals and execution.”

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Poor Sanitation in India May Afflict Well-Fed Children With Malnutrition by Gardiner Harris: “An emerging body of scientific studies suggest that Vivek and many of the 162 millionother children under the age of 5 in the world who are malnourished are suffering less a lack of food than poor sanitation.”

Love People, Not Pleasure by Arthur Brooks: “People who rate materialistic goals like wealth as top personal priorities are significantly likelier to be more anxious, more depressed and more frequent drug users, and even to have more physical ailments than those who set their sights on more intrinsic values.”

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Learning from Bodies by Nora Calhoun: “If we let bodies speak to us in their own language, by being present to them and offering the gifts of touch and physical care, we can learn what is truly at stake and why it matters.”

Corrupting citizens for fun and profit by Michael Gerson: “Rather than building social competence and capital, politicians increasingly benefit when citizens are addicted, exploited, impoverished and stoned. And that deserves contempt, not applause.”

The age of entitlement: how wealth breeds narcissism by Anne Manne: “Even thoughts of being wealthy can create a feeling of increased entitlement — you start to feel superior to everyone else and thus more deserving: something at the centre of narcissism. They found this was true of people who were, in real life, better off.”

Parenting with Smartphones by Amber Lapp: “There are no rules, few guidelines to help us set boundaries between work and family life when we work from home. The freedom, the flexibility, the lack of script is both the blessing and the curse.”

Helping girls worldwide requires a united stand by Malala Yousafzai: “We are stronger than those who oppress us, who seek to silence us. We are stronger than the enemies of education. We are stronger than fear, hatred, violence and poverty.”

Choosing Transformational Marriage by Elizabeth Stoker Bruenig: “Marriage lasts wherein the couple allow themselves to be transformed by it, and faithfully commit to that transformation, re-orienting the way they relate to one another and the marriage itself by willful habitation to the virtues of charity and kindness.”

Jihadists claim Baghdad blasts as Iraq rallies behind Christians by Jean Marc Mojon: “Until Saturday, there had been a continuous Christian presence in Mosul for about 16 centuries.”


A Culture of Sexual Assault: When Will We Wake Up?

On Wednesday, the White House Council on Women and Girls released a report, “ RAPE AND SEXUAL ASSAULT: A RENEWED CALL TO ACTION.” Wading through the sobering reality exposed by this report, one thing is crystal clear – sexual violence is widespread and deeply embedded in American culture.  An overview of the statistics:

  • Women and girls are the vast majority of victims: nearly 1 in 5 women – or nearly 22 million – have been raped in their lifetimes.
  • Men and boys, however, are also at risk: 1 in 71 men – or almost 1.6 million – have been raped during their lives.
  • Women of all races are targeted, but some are more vulnerable than others: 33.5% of multiracial women have been raped, as have 27% of American Indian and Alaska Native women, compared to 15% of Hispanic, 22% of Black, and 19% of White women.
  • Most victims know their assailants.
  • The vast majority (nearly 98%) of perpetrators are male.
  • Young people are especially at risk: nearly half of female survivors were raped before they were 18, and over one-quarter of male survivors were raped before they were 10 years old.
  • College students are particularly vulnerable: 1 in 5 women has been sexually assaulted while in college.
  • Repeat victimization is common: over a third of women who were raped as minors were also raped as adults.

As a college professor, the statistic that terrifies me the most is not merely that 1 in 5 college women will be sexually assaulted before they graduate but that:

Most college victims are assaulted by someone they know – and parties are often the site of these crimes. Notably, campus assailants are often serial offenders: one study found that of the men who admitted to committing rape or attempted rape, some 63% said they committed an average of six rapes each.

Most campus assaults go unreported and when you look at the “repeat offender” reality, it should make quite clear that changing campus culture about reporting, punishing, and well….everything surrounding sexual assault is an URGENT priority.

The vast majority of perpetrators are known to their victims.  As part of college life, this is particularly true and dangerously hidden given the image of rape as involving a stranger jumping out of the bushes.

In his opening remarks, President Obama issued a call to all of us – to refuse to accept sexual violence.

This is not an abstract problem that goes on in other families or other communities.  Even now, it’s not always talked about enough.  It can still go on in the shadows.  But it affects every one of us.  It’s about all of us — our moms, our wives, our sisters, our daughters, our sons.  Sexual assault is an affront to our basic decency and humanity.  And for survivors, the awful pain can take years, even decades to heal.  Sometimes it lasts a lifetime.  And wherever it occurs — whether it’s in our neighborhoods or on our college campuses, our military bases or our tribal lands — it has to matter to all of us.

Because when a young girl or a young boy starts to question their self-worth after being assaulted, and maybe starts withdrawing, we’re all deprived of their full potential.  When a young woman drops out of school after being attacked, that’s not just a loss for her, that’s a loss for our country.  We’ve all got a stake in that young woman’s success.

When a mother struggles to hold down a job after a traumatic assault, or is assaulted in order to keep a job, that matters to all of us because strong families are a foundation of a strong country.  And if that woman doesn’t feel like she has recourse when she’s subject to abuse, and we’re not there supporting her, shame on us.  When a member of our military is assaulted by the very people he or she trusted and serves with, or when they leave the military, voluntarily or involuntarily, because they were raped, that’s a profound injustice that no one who volunteers to defend America should ever have to endure.

So sexual violence is more than just a crime against individuals.  It threatens our families, it threatens our communities; ultimately, it threatens the entire country.  It tears apart the fabric of our communities.  And that’s why we’re here today — because we have the power to do something about it as a government, as a nation.  We have the capacity to stop sexual assault, support those who have survived it, and bring perpetrators to justice.

We also cannot tackle the cultural acceptance of sexual violence against women and girls without attention to domestic violence. Raising awareness on violence against women – there have been two fairly high profile PSA videos in recent months. One by Keira Knightly and one capturing “A Year in the Life” of a domestic violence victim. Both videos are worth watching.

Students at Montana State University have initiated a “Not in our house” campaign responding to sexual assault on campus. As the students at MSU, Vice President Biden, and President Obama all highlight, we all face a very important choice on the question of sexual assault. There is no neutrality. Silence is siding with rapists. Denial is siding with a culture that protects and hides rapists. I hope that the President’s new initiative and recent successes by organizers holding colleges accountable for Title IX violations will mark a change in our culture of violence.

This article is also featured on Catholic Moral Theology.

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Four new echoes in ‘Francis revolution’ by John Allen: “The pope made headlines by telling the mothers present they shouldn’t be embarrassed if they needed to breastfeed their infants, but the more substantive newsflash was that among those baptized by Francis was a little girl, Giulia, whose parents were married only civilly and thus not in the church.”

Pope Francis & Civil Marriage for Catholics by Michael Sean Winters: “He reminded us that God’s superabundant mercy is greater than any of our sins, His love is greater than any of our troubles, and that if the Church is to be truly the Church of Jesus Christ, this ‘rule’ of grace trumps all others in the pastoral care of the flock entrusted to the Church.”

BBC Newsday: Starvation in Syria leaves children eating grass to stay alive: “Activists say many are now starving in Syria, where one father reportedly tried to set fire to himself and his three children in a Damascus street rather than die slowly of hunger.”

Hunger, death in besieged Damascus area by AP: “Children, the elderly and others displaced by Syria’s civil war are starving to death in a besieged camp where women brave sniper fire to forage for food just minutes from the relative prosperity of Damascus. The dire conditions at the Yarmouk camp are a striking example of the catastrophe unfolding in rebel-held areas blockaded by the Syrian government.”

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Countering the Toxicity of Princess Culture

I used to ask my students what they wanted to be when they grew up and why. The answers were often very revelatory, illuminating what motivated them, what inspired their hopes, and not just what they wanted to be, but who they wanted to be. It often reflected their values or insecurities, sometimes both.

If you ask little girls what they want to be when they grow up, far too many would say “princess.” Peggy Orenstein, the author of Cinderella Ate My Daughter, contrasts this with her childhood, when being called a princess “conjured up images of a spoiled, self-centered brat.” The defenders of “princess culture” contend that it is merely a phase that girls will outgrow, but the values this culture promotes are often enduring. And they are toxic.

As Orenstein explains, “What was the first thing that culture told her (daughter) about being a girl? Not that she was competent, strong, creative, or smart but that every girls wants—or should want—to be the Fairest of Them All.” She found this confusing, as “girl power” messages and success stories abound, but the push to make the physical appearance of girls the “epicenter of their identities” has intensified and extended to younger and younger girls. In a study of 3- to 6-year-old girls, nearly half said they worried about being fat, while a third wanted to change a physical attribute.

What are the costs of this connection between identity and physical appearance? Citing the American Psychological Association, Orenstein notes that the focus on appearance and ‘play-sexiness’ can make girls more vulnerable to depression, eating disorders, having a distorted body image, and risky sexual behavior. From a Catholic point of view, we see that these girls become detached from their authentic identity as a unique, invaluable child of God, who is made in God’s image, through a degrading process of self-objectification.

While our culture often celebrates authenticity and “being who you are,” this message is often distorted by consumerist, materialist, sexist, and individualist filters. The result is the glorification of narcissism and individual choice, rather than achieving worthy ends with that liberty. Expressing who you are then centers around the construction, maintenance, and manipulation of one’s superficial identity. Girls (and boys) become alienated from their authentic personalities and distracted from their potential as persons and how they can go about realizing that potential. They define themselves not by their character, but by their shoes, their hair, their popularity, or personal tastes that have little to do with who they are at their core.

Princess culture is the starting point in this process of self-alienation and depersonalization for millions of American girls. What traits do cartoon princesses have that contribute to this? Orenstein writes, “Princesses avoid female bonding. Their goals are to be a saved by a prince, get married, and be taken care of for the rest of their lives. Their value derives largely from their appearance. They are rabid materialists.” Are these the values that parents want to inculcate in their girls? Do they want to teach them that happiness is found in things or the way they look? Do they want them to aspire to a life of idleness? Do they want their girls to treat other girls like rivals rather than persons made in the image of God? Do they want them to believe that a handsome, charming man will suddenly appear and make everything perfect?

For those of us who care about human equality and the common good—who want to see all girls have the chance to reach their full intellectual, emotional, physical, and spiritual potential as persons—the answer to all of these questions is emphatically no. No to the materialism, no to the helpless mindset, no to the superficiality and self-objectification, and no to a life without meaning and purpose.

Now is it possible to totally inoculate your child from princess culture? No, it’s too endemic. She will be exposed to princesses at some point. But that’s not the end of the world; overzealousness might backfire anyway. The key is to minimize its influence by exposing her to different values and consistently reinforcing these alternative values in the way you treat her and how you talk her (and others). The key is to make sure princess stories remain just that—stories  (even stories that entertain her), rather than something that shapes her identity and her aspirations.

Since kids inevitably look to others for inspiration, it’s important to find better role models for girls than princesses. And it is important to find heroes that spark imaginations and fuel creativity. These role models should display the values you wish to impart.  From Doc McStuffins to Malala, there are hard-working, creative, passionate, generous, loving, thoughtful, kind, resilient, courageous, and joyful role models out there. And some are men. Girls are more than their sex or gender; they should have male role models, just as boys should admire and wish to emulate female role models.


Other steps can be taken to discourage a princess mentality. We can encourage girls to read and to read things that are worth their time. We can teach them the importance of community service. We can encourage them to play sports. Statistics show that participation in team sports is linked to lower pregnancy rates, higher self-esteem, and superior academic performance, among other benefits. Get them started early.

We can stop buying shirts that say “I’m pretty popular,” “the princess has arrived,” or “it’s all about me.” Even if they are supposed to be ironic, they undermine efforts to teach that narcissism and superficiality are unethical and lead to unhappiness. And if parents refuse to buy them for their girls, perhaps companies will make more “brave one” shirts for girls, like they do for boys.

It was great to see Mercy Academy’s anti-princess advertisements, which included the line: “Be more than just the fairest of them all.” Schools should be explicit about not only what girls can do to reach their potential and promote the common good, but also about the obstacles that stand in their way and can divert them from achieving what they hope to accomplish with their lives.


Finally, it’s critical to explain the connection between authentic beauty and genuine love and to dispel the myth of objective attractiveness. Vigilance is required to tear down the societal prejudices surrounding notions of attraction that she is likely to absorb and that are the foundation of incalculable miseries. We must teach our girls to reject these irrational prejudices and to understand the importance of character rather than fleeting standards of what is hot, sexy, cute, and trendy.

If we do things, each girl stands a better chance of recognizing her own infinite worth. She is more likely to reach her full potential as a person. And our society is more likely to move closer to real equality, greater human flourishing, and the realization of the common good. We all have a stake in overturning the poisonous effects of princess culture. Let’s make sure every girl knows she can be more than a princess.