Wednesday, December 3, 2014
The Court heard oral argument in Young v. UPS (argued in part by Sam Bagenstos (Michigan)) this morning, and the transcript is now available on the Court's website. I've read it and am not entirely sure what to conclude. One analogy made by Justice Scalia, and used throughout the argument was "most favored nation" status. Does the second clause in the PDA, which requires that pregnant workers be treated the same as other workers similar in their ability or inability to work, require that pregnant workers be treated the same as the best treated of those others? Or can they be treated as least favored nations -- as long as there is a group of workers similar in their ability or inability to work that is treated poorly, pregnant workers can be treated poorly too? The policy at issue allowed light duty accommodations for workers injured on the job, but required those injured off the job who couldn't lift heavy things to take unpaid leave. So there was a distinction within the group of workers similar in their ability or inability to work that was not related to pregnancy. At the same time, the policy weeded out all pregnancy limitations. Moreover, there were two exceptions to the off-the-job part. If the off-the-job injury resulted in a disability under the ADA, or a DOT decertification, the injury was accommodated.
There was a significant amount of back and forth about what that second clause means, since it's not a full fledged accommodation requirement like the religious accommodations in Title VII or the accommodation requirement of the ADA. At the same time, it has to mean something more than simply that discrimination on the basis of pregnancy is discrimination on the basis of sex, since that's what the first clause says. And clearly the effect of the PDA on the Court's decision in General Electric Co. v. Gilbert is still under debate. I'm making no predictions, but I'd be interested in your insights in the comments.