Wednesday, December 3, 2014

Oral Argument in Young v. UPS

ScotusThe 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.


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So one of the things that strikes me as interesting about the case is how it is that this question, which goes to the heart of the PDA, has not yet been resolved? My sense is that Judge Posner's influential Troupe case sent things on the wrong course, and it will be interesting to see if the conservative members of the Court can find a way to make sense of the second clause of the statute without ruling in Ms. Young's favor. Hard to see how they can do so -- the employer's argument in its brief that it provides accommodations to pregnant workers injured on the job and that is all they need to do sounded awfully hollow to me. I think there may be a way the Court can duck the issue by saying that the record is not sufficiently developed to determine whether the three classes of workers provided accommodations are similarly situated in their restrictions, but it is hard to see how they can do so without also ruling that is a proper comparison.

Posted by: Mike Selmi | Dec 5, 2014 10:49:36 AM

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