Washington D.C., Mar 28, 2015 / 05:25 am
A recent ruling from the Supreme Court to clarify workplace protections for pregnant women will help remedy some of the pressure placed on working women to abort rather than continue pregnancies, pro-life legal experts say.
“We’re very pleased to see the outcome here,” Clarke Forsythe, chief counsel for Americans United For Life, told CNA.
“There needs to be strong protection against pregnancy discrimination because women are discriminated against, because we have legalized abortion. Unfortunately, people think that because women have a right to abort, they should abort in some circumstances, especially when there may be workplace conflicts.”
On March 25, the Supreme Court ruled 6-3 in Young v. UPS that Peggy Young should get another chance to argue before a lower court that her former employer, United Parcel Service, treated her unfairly by forcing her to take unpaid leave when a doctor advised that she take lighter duty while pregnant. In addition to refusing to reassign Young, UPS also revoked Young’s medical coverage during her unpaid leave period. She later left the company.
The Fourth Circuit earlier ruled that UPS had not violated the Pregnancy Discrimination Act, because the employer treated pregnant workers similarly to those injured off-the-job. At the time, UPS offered accommodations only to persons in specific categories, such as those who had been injured on the job, those with conditions covered by the Americans With Disabilities Act or those who lost a license to drive a commercial vehicle.
Young argued that since the company does have accommodations for other persons with temporary work restrictions, the refusal to accommodate her limitations during pregnancy was illegal discrimination, under the 1978 Pregnancy Discrimination Act.
In the majority opinion, Justice Stephen Breyer questioned both lines of argument, creating a decision that compromised between the arguments of UPS and Young. If employers do accommodate some temporary physical limitations and disabilities, the court ruled, it must also accommodate pregnancy, as well as other temporary conditions.
Employers can still deny accommodation of pregnancy-related limitations for some non-discriminatory reasons, but not for the reason that “it is more expensive or less convenient” to extend these accommodations to pregnant women. The court did not clarify what these non-discriminatory reasons could be.
The court also ruled that women would be able “to show disparate treatment through indirect evidence,” meaning that they do not need to prove that they themselves were discriminated against so long as there is a clear pattern of unequal treatment of pregnant employees.
The majority opinion required that Young’s case be brought back to the Fourth Circuit to be decided under these guidelines because of a “genuine dispute as to whether UPS provided more favorable treatment to at least some employees whose situation cannot reasonably be distinguished from Young's.”
In a concurring opinion, Justice Samuel Alito echoed the majority opinion’s points, commenting that UPS did not show it had “any neutral business ground for treating pregnant drivers less favorably than at least some of its nonpregnant drivers who were reassigned to other jobs that they were physically capable of performing."
However, not all of the justices agreed with the court’s majority opinion. Justice Antonin Scalia, joined by Justices Anthony Kennedy and Clarence Thomas, penned a dissent that questioned the method by which the court reached its compromise.
The dissenting justices did not disagree with the idea that pregnant women should be accommodated, but rather objected to what they saw as the majority’s failure to perform its job of upholding the current law of the land, regardless of how desirable the court may find it.
The majority ruling, Scalia wrote, creates a “new law that is splendidly unconnected with the text and even the legislative history of the act.” Instead of ruling on existing laws, he critiqued, the majority opinion of the court “seems to think our task is to craft a policy-driven compromise between the possible readings of the law, like a congressional conference committee reconciling House and Senate versions of a bill.”
Likening the crafting of the majority’s compromise to using a “Supreme Wand to produce the desired result. Poof!” the justice harshly criticized the decision. “Inventiveness posing as scholarship – which gives us an interpretation that is as dubious in principle as it is senseless in practice,” he wrote.
In a concurring dissent, Justice Kennedy reinforced his disagreement over the legal reasoning for the ruling while noting his concern for the treatment of pregnancy as a workplace-equality issue. While the case only dealt with one aspect of protections surrounding pregnancy, Kennedy wrote, the “difficulties pregnant women face in the workplace are and do remain an issue of national importance.”
Sharon Gustafson, who has served as counsel for Peggy Young for eight years, told CNA that the issue of pregnancy discrimination in the workplace “still happens, and it still happens a lot.”
“I believe that no woman should have to choose between continuing her pregnancy and continuing her job, especially in a situation where the employer makes all sorts of accommodations for non-pregnant employees,” she said, adding that while “we still have a lot of work to do on this case,” overall, she was happy with the decision.
“What it means is that employers are no longer going to be able to discriminate against pregnant women and feel safe doing so.”
Forsythe commented that this ruling could help to reverse pressures put on pregnant women to abort their children if they wish to remain in the workplace.
“Pregnancy discrimination is one of the unfortunate consequences of the Supreme Court’s abortion decision in Roe v. Wade,” he explained. “Roe taught that abortion is a quick, easy, less-expensive choice,” which, Forsythe continued, “resulted in considerable pressure on some pregnant women to abort.”
This pressure and discrimination, he explained, is felt in the workplace, and particularly among poor women who are confronted with free, taxpayer-funded abortion in addition to other pressures from employers or uncommitted partners.
This ruling, he said, should “strengthen pregnant women’s hands in the workplace by enabling them to ask for accommodations that are given to others.” He commended the court for recognizing the “problem of pregnancy discrimination and the need for strong protection against pregnancy discrimination in the workplace.”
Before the case was argued before the Supreme Court in December 2014, Americans United for Life and 22 other pro-life organizations filed a brief to the court supporting Young’s case. The brief argued, among other points, for the court to respect the Pregnancy Discrimination Act’s recognition of the “important a role pregnancy plays in women’s lives” and in society, as well as the unique and “fundamental right to bear children” that women have.