Friday, December 5, 2014

Pregnant Pause?

This week the U.S. Supreme Court heard oral argument in Young v. UPS, a case that may hinge on a semicolon. The facts are short: when Young became pregnant, her employer, UPS, refused to accommodate her pregnancy-based physical restrictions (though UPS did accommodate "light-duty" requests from non-pregnant workers). She was placed on unpaid leave, returned after the birth of her child, and sued under the Pregnancy Discrimination Act, an amendment to the Civil Rights Act of 1964.

The PDA was intended to clarify that the Act's prohibition against discrimination "because of sex" or "on the basis of sex" includes discrimination based on pregnancy:

The terms 'because of sex' or 'on the basis of sex' include, but are not limited to, because of or on the basis of pregnancy, childbirth, or related medical conditions; and women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related other persons not so affected but similar in their ability or inability to work.

Under Young's interpretation, UPS violated the PDA by failing to treat Young, a woman "affected by pregnancy" (what an inartful phrase!) the same as "other persons no so affected but similar in their ability or inability to work."

According to UPS, in refusing to accommodate Young's light-duty request, it was not acting discriminatorily but merely being "pregnancy blind." During oral argument, several justices, including Kagan and Ginsberg, were skeptical of this argument, suggesting that UPS's interpretation would render the language after the semicolon in the PDA "superfluous." (Check out Dahlia Lithwick's article on oral argument here.)

What do you think?  Will UPS's argument carry the day, or will the Court deliver Young a victory?

Happy Friday!

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