I'm reading the UPS brief in the case of the pregnant woman who was denied a temporary light-duty assignment at work due to a lifting restriction: http://sblog.s3.amazonaws.com/wp-content/uploads/2013/07/Brief-in-Opposition-As-Filed.pdf. It's really getting my dander up to read about how "pregnancy-blind" policies are not discriminatory to pregnant women. Maybe it's not overt discrimination, but pretending like pregnancy is not a thing that happens to only women, will automatically lead to saying things like "the universe of nonpregnant males and females." Nonpregnant men? Thanks for clarifying. We wouldn't want to leave out the men in a discussion about sex discrimination now, would we?
UPS relies on the following explanations for why there was no violation of the Pregnancy Discrimination Act (PDA), and these are my thoughts:
1. A collective bargaining agreement. UPS workers are represented by a Union, and the collective bargaining agreement does not include an accommodations policy for pregnancy like it does for on-the-job injuries, a disability covered by the ADA, or loss of driving privileges (e.g. you got a DUI and have a suspended license). The union? International Brotherhood of Teamsters. Anyone else see a problem?
2. A "pregnancy-blind" policy--which is automatically discriminatory on the basis of sex since pregnancy is not an equal opportunity condition.
3. Statutory interpretation--by UPS's reading the only class of people pregnant women can be compared to are other pregnant women, so a company can just discriminate against all of them and there's no problem. And we all know statutes are always carefully crafted and never sloppy or ambiguous (ha). "Petitioner must show that pregnancy was singled out for exclusion." If your policy is "pregnancy-blind," and no accommodation is available to a pregnant woman, then haven't you singled out pregnancy for exclusion?
4. If the condition were employment-related, then an accommodation would be available--so, ladies, make sure to conceive while on the job!!
5. An accommodation for pregnancy would amount to preferential treatment. The Circuit Court, in affirming the grant of summary judgment below, was openly hostile to a request for accommodation based on pregnancy, when it stated that the PDA does not require "employers to grant pregnant employees a ‘most favored nation’ status with others based on their ability to work, regardless of whether such status was available to the universe—male and female—of nonpregnant employees." See, I didn't make that up. What does that even mean? All I can say is wow, there must be a lot of entitled bitches out there getting pregnant just so they can get some accommodations and totally slack off at work for a few months. Because being pregnant does not actually cause any physical changes in a woman's body, right? I mean, growing another human being inside you is not taxing on your own systems at all, right?
6. Apparently the sponsors of the PDA intended that pregnancy be treated like other non-work related conditions. If you refuse to treat pregnancy as a unique condition applying only to women and occasionally requiring different accommodations that cannot be compared to accommodations necessitated by men or by men and women equally, then is there any other way to treat it?
7. An accommodation based only on pregnancy status results in preferential treatment. Oops, I said this already in Number 5. But it bears repeating. And what the fuck? If what the PDA means is that policies actually MUST be pregnancy-blind, then what was the point in enacting it? If that is what it means then the statute itself is the complete embodiment of circular reasoning and I am going crazy trying to respond to the UPS arguments because the whole entire thing just does not make sense. Case in point: "requiring UPS to accommodate petitioner's pregnancy-based limitation, even though similarly situated employees would not be similarly accommodated, would treat pregnancy more favorably than any other basis under Title VII." So who the hell else are the similarly situated employees? The nonpregnant men? Oh.
8. Petitioner's request for accommodation results in setting aside the collective bargaining agreement and allows her to "jump the line" in the seniority system. I don't even know how to respond to this one.
9. Since there is no discriminatory animus towards pregnant women in a pregnancy-blind policy, there can be no sex discrimination. So by pretending pregnancy doesn't exist, then when it does, what happens? Sometimes two things cannot be treated the same to have an equitable result. Like pregnant women and nonpregnant people. What if pregnancy were the preferred status and the status quo? Would we ever consider that men were NOT being discriminated against due to their inability to achieve pregnancy? Of course not. That would be really unfair.
10. Pregnancy is not a disability under the ADA. But when looking for a comparison for pregnant women, the comparison is workers temporarily DISABLED by an off-the-job injury. Also, I find it really ironic, and incredibly irritating, that pregnancy is not a protected class as a disability and that a temporary accommodation is not legally required, but for the purposes of short-term disability insurance coverage it is a disability of precisely six or eight weeks once you have the kid. Again, WTF?
11. Policies that treat pregnant women the same as those employees injured off the job are endorsed by the courts. So now pregnancy IS akin to an injury? Because that makes sense. See Number 4 above. In the Sixth Circuit, a pregnant woman was fired based on a pregnancy-blind policy that allowed for firing employees who could not perform the essential functions of the job (again keep in mind that pregnancy ends after no more than 9 months, and in the first 2 weeks the woman is literally not even pregnant yet), and court said that the PDA "merely requires employers to ‘ignore’ employee pregnancies." If the only reason a woman cannot perform her job duties is that she is pregnant--temporarily!!--then how is her pregnancy status being ignored? And how is it possible that a law enacted to protect pregnant women from workplace discrimination is followed by ignoring the fact that a woman is pregnant? Maybe the PDA was enacted to prevent discrimination against pregnant women who look pregnant simply for looking pregnant? Like, just ignore that big belly, she's the same as she was before. This is not really a joke because it wasn't too long ago that teachers had to go on unpaid leave in the fourth month of pregnancy--that is, don't let anyone see you pregnant.
More thoughts: Pregnancy is a temporary condition, people. That is why the ADA doesn't cover pregnancy. And seemingly why the PDA became its own statute. We can all agree that pregnancy affects a woman's physical capabilities--that's how it works. But it's for a limited period of time. It's not that big a deal. I know of a workers' compensation recipient who has been on benefits for EIGHT YEARS because she hurt her back at work while bending over to PICK UP A PEN. If that worker can get such benefits, perhaps a pregnant woman can be relieved of heavy lifting for five months? Or she can be allowed to carry a water bottle at work for five months, even though no one else NOT PREGNANT is not allowed to carry a water bottle at work? (I'm looking at you, Walmart.) Pregnancy is not the same as an off-the-job injury because injuries can happen to anyone, and pregnancy cannot. It's really that simple. Trying to shove pregnancy into a comparison with men things and things that happen to everyone unnecessarily complicates the matter and results in disparate treatment.*
If temporary accommodations for pregnant women amount to "special treatment," so be it. It's 2014. Let's get with it and get over the fact that women work. They get pregnant. They still work and still want to work. If women stop having babies then our society, and things like our Social Security system, will eventually (or soon) cease to exist.
When women have physical jobs, they may need to modify their duties for a short period of time during pregnancy. If a large company with a lengthy policy on accommodations cannot accommodate a pregnant woman for a few months, what is the message? The message is that women don't belong on the job. That is not acceptable.
*UPS notes that while petitioner's arguments fail in a disparate treatment case, her burden would be different in a disparate impact case. The brief also points out that petitioner's arguments are better directed to the legislature than to the courts. I cannot disagree with these points, except to point out that the Pregnant Workers Fairness Act failed to pass in 2012, so clearly the legislature does not want to provide needed protections to pregnant women in the workplace. I did not do any research as to why the bill failed, but save me the arguments that it was the will of the people. Also see the Gail Collins opinion column in the New York Times from 12/6/14.