Yesterday, the question of whether it is legal to fire someone for becoming pregnant went before The Supreme Court. December 3, 2014. That’s not a typo. TWO THOUSAND AND FOURTEEN!
Peggy Young had been working for UPS for four years when she became pregnant. When she told her employer that her doctor told her not to lift packages heavier than 20 pounds, she didn’t anticipate she would lose her job and health insurance for nine months. But that’s what happened, and that’s why her case is now in front of the Supreme Court.
Though UPS requires that its drivers be able to lift up to 70 pounds, Young assumed she could keep her job during her pregnancy because almost all of the packages she handled were under 20 pounds. She only handled packages weighing over 20 pounds a few times each month, and a co-worker had already offered to help on those rare occasions.
And here’s the thing. Part of the reason Young expected more flexibility from her employer was because UPS does, in fact, accommodate other workers by giving them light duty if they need it due to a disability or an on-the-job-injury. Its policy even accommodates workers who lose their commercial driver’s license because of a DUI. But if you get pregnant, instead of busted for driving while drunk, you’re screwed.
The legal question in the case is over the language and the intent of the Pregnancy Discrimination Act, which was passed in 1978 by Congress after the Supreme Court ruled that discriminating against pregnant women was kosher because you’re only discriminating against women who become pregnant, not all women.
The case arrived at the Supreme Court on Wednesday and here are some gems from the transcript.
Justice Antonin Scalia equates being treated equally with being a princess and asking for special treatment.
This is how Young’s lawyer summarized their position: “The employer would be required to treat the pregnant plaintiff the same as those classes of employees who get accommodations.” Scalia responded by saying, “Most favored nations treatment… it’s a most favored nation provision. You have to give the benefits that you give to any other class of 25 employees.” In other words, Scalia is saying that Young’s position would require that any single accommodation made for any single employee must be granted to all pregnant women. Say, for instance, that an employee who had worked at UPS for fifty years and was one year away from retiring fell while not at work and was given lighter duty. Then all pregnant women would be entitled to that same accommodation. But this is a straw man — or, rather, straw pregnant woman — argument. Because what Young is asking for — to extend the metaphor of international trade relations — is just not-worse-than-every-other-single-nation status. Oh! The horror!
Justice Ruth Bader Ginsburg brings the sarcasm.
Scalia may be known for his sense of humor (and fascism) but Notorious RBG was showing considerable sarcasm chops. When the lawyer representing UPS argued that it’s ok to not accommodate pregnant women as long as you’re also not accommodating other people, Ginsburg replied, “I mean, you said that Young’s position is most favored nation. Well, yours is least 10 favored nation, right?” Oh no she didn’t!
Justice Elana Kagan for the win.
In a moment that must have terrified conservatives Thomas, Alito, and Scalia, Kagan actually recognized that we live — or should live — in the 21st century in which the Pregnancy Discrimination Act is law:
For the democratic process to work as it should, the PDA [Pregnancy Discrimination Act] has to be given a fair reading. And 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.
RBG asks UPS a single question they can’t answer.
Since UPS’s basic claim is that they’re not discriminating against pregnant women because there are a lot of other classes of workers whom we also refuse to accommodate, Justice Ginsburg merely asks the UPS lawyer to back up the argument by providing “a single instance of anyone who needed a lifting dispensation who didn’t get it, except for pregnant people.”
And guess what? She couldn’t.