SCOTUS poised to reverse in pregnancy discrimination case, but the details are up in the air

December 4, 2014

SCOTUS ClipboardYesterday, the Supreme Court heard oral arguments in Young v. UPS, the case about whether the 1978 Pregnancy Discrimination Act requires employers to make accommodations for pregnant employees who are partially or completely unable to fulfill their job functions on account of their pregnancy.

As a quick primer, here are the facts of the case:

Peggy Young, a part-time driver for UPS who became pregnant, was informed by her midwife that she should not be lifting more than 20 pounds.  This accommodation was available to other UPS employees if they were injured on the job, disabled under the Americans with Disabilities Act, or had lost their driving credentials.  However, because Young did not fit into any of these categories, she was denied the accommodation.  She instead went on unpaid leave for the duration of her pregnancy.

The PDA was enacted in 1978, and overrules a Supreme Court ruling from 1976 (General Elec. Co. v. Gilbert) that held essentially that discrimination against pregnancy isn’t the same thing as sex discrimination, so it was okay as long as it wasn’t a “mere pretext” for sex discrimination (check out our recent Today in Legal History post about the PDA for more background).

What can we tell about how the justices are going to come down on the issue from what was said during oral arguments?

Considering the full frontal assault leveled against UPS’s attorney by Justices Ginsburg and Kagan, it’s pretty clear that they’ll be voting for Young.

But what about everyone else?

The general consensus on the Court (minus Justice Alito, who consistently went out of his way to help UPS’s attorney out through his questioning) was that Young should probably prevail, based mostly on one certain aspect of the case that arose during this exchange between Young’s attorney and Justice Breyer:

MR. BAGENSTOS: … we have presented examples in the record of individuals who have off-the-job injuries, who are similar in their ability to work as Peggy Young, who have been given accommodated work, and UPS hasn’t pointed to in its briefing here any driver with a similar lifting restriction to Peggy Young who was not pregnant who didn’t get the accommodation.

JUSTICE BREYER: You can win your case with that argument, perhaps.

MR. BAGENSTOS: And I hope so, yes.

JUSTICE BREYER: Yes, assume that. But that isn’t going to help me, which I’m rather selfish about.

As Breyer hinted to at the end, Young winning her case doesn’t necessarily make the decision an easy or clear cut one.  Instead, any decision favoring Young would have to be written more broadly so that it could apply to a wide variety of situations without creating absurd or unintended results.

For example, during arguments, the Court grappled with questions about how many employees need be given an accommodation before the PDA creates a duty for employers to accommodate pregnant employees.  There were also questions about whether accommodations for injuries sustained on-the-job would entitle similarly situated pregnant employees to those same accommodations (assuming that those non-pregnant employees receiving the accommodations were similar in their inabilities to the pregnant employees).

There’s also the issue of the Equal Employment Opportunity Commission’s recent guidance on the PDA (issued in July 2014), which “rejects the position that the PDA does not require an employer to provide light duty for a pregnant worker if the employer has a policy or practice limiting light duty to workers injured on the job and/or to employees with disabilities under the ADA.”  This guidance may have rendered any broader Court opinion superfluous, and may dissuade some justices from taking a strong stance on behalf of the rights of pregnant workers, so as not to step on the EEOC’s toes.

However, if Ginsburg or Kagan can craft a rule that smoothly navigates these dicey issues, they may get enough votes for a majority.  Otherwise, we may be looking at a messy plurality decision that only has majority support for the result in Young’s particular case, not how the PDA is to be interpreted more broadly.

So, in short, while it looks like Young is headed for a win, it could be anyone’s guess at the wider implications for how the PDA is to be applied.

On the other hand, for the purposes of FantasySCOTUS, all we need to do is predict whether the Court will affirm or reverse, and that’s a much easier determination to make.

Although Justices Scalia, Thomas, and Chief Justice Roberts are somewhat of a mystery, I would venture a guess that the decision to reverse – even if it’s just to reverse the trial court’s decision to grant summary judgment so that the case can proceed to trial – would be shared by all three.

Thus, my prediction for this case on FantasySCOTUS is REVERSE 8-1, with the only dissenter being Justice Alito.