On December 3, 2014, the US Supreme Court heard oral arguments in Young v. UPS, which, as previously discussed on this blog, may clarify an employer’s obligation under the Pregnancy Discrimination Act (“PDA”) to provide an accommodation to pregnant workers. Supreme Court commentators, however, are deeming the case too close to call.

At the beginning of oral arguments, the crux of the Supreme Court Justices’ questions appeared to assume that the PDA provided the right to an accommodation, and the focus of the questions were on how employers should identify comparators for purposes of determining a baseline for an accommodation. For example, Justice Scalia asked whether pregnant women would be entitled to a ride to work in the event that they were unable to drive if the company offers the same accommodation to senior employees. Justice Breyer appeared to agree, indicating that the lower courts need to figure out the issue of comparators. He noted that the law seeks comparisons with other workers, but, he asked: “Which others?”

Counsel for UPS argued that failure to accommodate does not make UPS discriminatory, but rather it makes UPS “pregnancy-blind.”  This prompted the second half of oral arguments to focus on the topic of statutory construction, with many questions focused on the placement of a semicolon in the text of the PDA. Specifically, the clause (and semicolon) in question reads:

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 purposes, including receipt of benefits under fringe benefit programs, as other persons not so affected but similar in their ability or inability to work, and nothing in section 2000e-2(h) of this title shall be interpreted to permit otherwise. 

In response to UPS’s argument that failure to accommodate does not make UPS discriminatory, Justice Kagan spent a significant amount of time asking UPS different versions of the same question:  “So your reading of the statute basically makes everything after the semicolon completely superfluous?”  Kagan concluded by informing UPS’s counsel: “What we know about the PDA is that it was supposed to be about removing stereotypes of pregnant women as marginal workers. It was supposed to be about ensuring that they wouldn’t be unfairly excluded from the workplace. And what you are saying is that there’s a policy that accommodates some workers, but puts all pregnant women on one side of the line.”

In sum, the Supreme Court appeared to search for legal reasoning to justify the position of granting pregnant employees with an affirmative right to reasonable accommodations (similar to the American with Disabilities Act and the religious protections of Title VII of the Civil Rights Act of 1964). It is unclear, however, how the Justices will rule on this issue. A decision is expected in Spring of 2015.

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