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Although Congress acted during the 1970s to ban employers from discriminating against pregnant women, both attorneys and women have told me over the years that pregnancy discrimination remains common in the workplace. The U.S. Supreme Court weighed in today in the case of Young v. United Parcel Service. I enclose below some links about this important ruling.

SCOTUSblog posted links to all important documents related to this case here. Click here to read the full text of the majority opinion, concurrence, and dissents.

As Nicole Flatow pointed out at Think Progress, all of the 11 amicus briefs filed in this case supported Young’s position. None supported UPS, which had in effect forced the plaintiff out of a job by not accommodating her inability to lift heavy packages while pregnant.

Flatow summarized the 6-3 ruling as “U.S. Supreme Court Sides With Pregnant Worker In Major Discrimination Case.” Irin Carmon’s story for MSNBC was headlined, “Supreme Court delivers a win for pregnant workers.” Although the ruling was certainly encouraging, it did not decide the case in Young’s favor. Rather, the majority ruled that she should have her day in court and sent the case back to the Fourth Circuit Court of Appeals with instructions that improve Young’s chances of winning.

Lyle Denniston’s opinion analysis at SCOTUSblog summarized the outcome as follows:

Dissatisfied with every argument made to it, a Supreme Court majority on Wednesday on its own fashioned a new way to test complaints that employers are discriminating against workers who become pregnant.  The result, in Young v. United Parcel Service, was a kind of hybrid remedy, judging intentional bias on the one hand and harmful impact on women workers on the other.

It was clear, though, that female workers did not receive legal protection as strong as their advocates sought, but neither did employers get a free pass from claims of pregnancy bias.  The six-to-three decision thus looked like a compromise, landing somewhere in the middle.

Click through to read Denniston’s full post.

I was a bit surprised to see business-friendly Chief Justice John Roberts join Justice Stephen Breyer’s ruling along with the three justices who are usually more sympathetic to discrimination claims. I was even more surprised to see Justice Samuel Alito write separately to support the outcome ordered by the majority. Carmon reported,

Under the court’s reasoning, Young wouldn’t have to show UPS was intentionally discriminating against pregnant workers, but a court would have to “consider the extent to which an employer’s policy treats pregnant workers less favorably than it treats nonpregnant workers similar in their ability or inability to work.” Just like in other discrimination claims, the company would then have an opportunity to show if there was any “legitimate, nondiscriminatory, nonpretextual justification for these differences in treatment.” The company’s justification wouldn’t necessarily be the end of the story, though – a company can’t just claim, for example, that it would be too expensive or inconvenient for them to accommodate a pregnant woman.  

Alito voted with the majority but wrote a separate opinion. He zeroed in on the fact that UPS provided temporary accommodations for drivers that had lost their licenses. “It does not appear that respondent has provided any plausible justification for treating these drivers more favorably than drivers who were pregnant,” Alito wrote.  

That’s so sensible and not at all what I would expect from Alito. I have two hunches about why he was generally sympathetic to the plaintiff’s case. Perhaps a close friend or relative has experienced pregnancy discrimination. Conservatives seem to become more attuned to minority rights if someone they care about is personally affected.

Alternatively, Alito may have been persuaded by the amicus curiae brief filed by 23 “pro-life” organizations. At first glance, their interest in this case is not obvious, but the groups expressed concern that allowing employers to discriminate against pregnant workers “could encourage women to get abortions.” From their brief:

Amici support the goals of the Pregnancy Discrimination Act (PDA) to prevent discrimination against pregnant mothers and to reduce pressure on women in the workforce to have an abortion. Economic pressure is a significant factor in many women’s decision to choose abortion over childbirth. Protecting the ability to work can increase true freedom for women, promote the common good, and protect the most vulnerable among us. The PDA protects the unborn child as well as the working mother who faces economic and other difficulties in bearing and raising the child.

I can’t ever recall the anti-choice movement ending up on the same side of a court case as the American Civil Liberties Union and various women’s rights organizations.

Justice Antonin Scalia wrote the dissent, joined by Justices Clarence Thomas and Anthony Kennedy. Additional remarks by Kennedy made clear that he is aware of many “difficulties pregnant women face in the workplace.” But he felt Young “cannot point to a class of her co-workers that was accommodated and that would include her but for the particular limitations imposed by her pregnancy.”

Congressional Democrats have tried to pass a Pregnant Workers Fairness Act, which “would make it clear employers have to provide reasonable accommodations to pregnant women, without the burden of showing in court that other, similar workers had gotten such accommodations.” Don’t hold your breath for Republicans in the House or Senate to allow that language to reach the president’s desk.