Nine to Five and the Development of Pregnancy Discrimination Law

Nine to Five is a terrific book that vividly highlights the continuing contestation over sex discrimination—both over what sex discrimination is and over how prohibitions on sex discrimination should operate.  The book’s unique structure—a collection of columns discussing then-recent events but written for a legally-aware and intellectually-curious audience—gives Nine to Five an immediacy of writing, a depth of scholarship, and an important perspective on the development of legal and social norms over time.

The book contains illuminating discussions of many discrete topics—sexual orientation and gender identity discrimination, sex harassment, pay inequities, among others—and I could easily see myself engaging with Joanna’s discussion of any of them.  But, for largely personal reasons, I am drawn to another significant area Joanna treats extensively—pregnancy discrimination.

In 2015, the Supreme Court decided Young v. United Parcel Service, a case that provided important rights to job accommodations for pregnant workers.  I had the honor to represent the plaintiff, Peggy Young, in the Supreme Court.  But if there is one person who is responsible for Peggy Young’s success in that case—which was incomplete, but was nonetheless extremely important—Joanna Grossman is a good candidate for the honor.  The PDA issue raised by Young first got on my active radar screen when I saw Joanna present a paper with Gillian Thomas at a conference at Yale in 2008.  When I signed up to represent Peggy Young in the Supreme Court, Joanna was one of my first phone calls.  She wrote a terrific amicus brief at the petition stage that I think was crucial in convincing the Court to grant cert, she wrote another great amicus brief at the merits stage, and she was incredibly helpful throughout the process as we worked through our arguments.

Nine to Five devotes a number of chapters to the Pregnancy Discrimination Act in general, and to the Young case in particular.  Reading these chapters now, one appreciates how much the lower-court case law was stacked against Peggy Young, how important her victory was, and the important gaps that remain in the law.

Chapter 31 of Nine to Five illustrates what a hill Peggy Young had to climb.  That chapter discusses the Sixth Circuit’s 2006 decision in Reeves v. Swift Transportation Company.  In Reeves, the court applied what was at that point the dominant rule in the lower courts—that the Pregnancy Discrimination Act imposed no requirement on employers to provide light-duty jobs to pregnant workers, even if they provided light-duty jobs to other classes of workers, so long as the basis for deciding which workers to accommodate was “pregnancy neutral.”  In Reeves, the employer provided light duty to those workers who needed it because they were injured on the job, but not to workers who needed it for other reasons.  Because the on-the-job/off-the-job distinction was pregnancy neutral, the court held, the employer did not violate the PDA by refusing to accommodate the plaintiff, who needed light duty because of the physical effects of her pregnancy.

In Chapter 31, Joanna argues, forcefully, that the Sixth Circuit read the PDA incorrectly.  The PDA contains two clauses.  The first simply defines sex discrimination to include pregnancy discrimination: “The terms “because of sex” or “on the basis of sex” include, but are not limited to, because of or on the basis of pregnancy, childbirth, or related medical conditions[.]”  The second adds that “women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes, including receipt of benefits under fringe benefit programs, as other persons not so affected but similar in their ability or inability to work.”  Joanna argues that the employer in Reeves violated the second clause, because it didn’t treat pregnant workers “the same” as nonpregnant workers “similar in their ability or inability to work.”  She suggests that the Sixth Circuit missed the point by focusing on the wrong comparison group:  The Sixth Circuit “compared the treatment of Reeves with the treatment of employees with temporary disabilities incurred off duty and found she was treated no worse.”  But, she argues, “what if the comparison group were, instead, employees with temporary disabilities, with no consideration as to the source of injury?  Reeves was treated worse than at least some of these employees—the ones who incurred on-the-job injuries.”

The succeeding two chapters highlight some of the possible ways around the restrictive case law elaborated by the lower courts: through disparate impact claims or clear showings of animus, as in two cases successfully brought by officers of the Suffolk County Police Department; or through state and local legislation, such as the Pregnant Workers Fairness Act enacted by New York City (not to be confused with the proposed, but not-yet-enacted, federal legislation by the same name).  But, in the years since the lower courts first articulated the “pregnancy neutral” principle that the Sixth Circuit applied in Reeves, these avenues had proved too narrow to accommodate many plaintiffs—and for far too many they were dead ends.

Young presented an opportunity to directly attack the lower courts’ restrictive case law.  And the Court delivered, with a strong repudiation of the “pregnancy neutral” principle.  As Joanna explains in Chapter 35, that principle “would have allowed the employer’s policy in [General Electric v.] Gilbert—which covered all sicknesses and accidents—to be upheld despite the incontrovertible fact that the PDA was enacted expressly to overrule that opinion.”  Justice Breyer’s opinion for the Court emphasized that the PDA could not be read in a way that would resuscitate either the holding or the reasoning of Gilbert.  (Verna Williams thus might have more reason for optimism than she thinks.)

The Young Court did not adopt the so-called most-favored-nation interpretation of the PDA, under which an employer that provided light duty to any nonpregnant employee would be required to provide it to all pregnant employees with equivalent limitations.  But it did go a long way to ensuring that pregnant workers would be treated, as Joanna has repeatedly urged, as equal citizens at work.  (See especially Chapter 36.)  The Court said that an employer ordinarily could not defend its refusal to accommodate pregnant workers “simply” by making “a claim that it is more expensive or less convenient to add pregnant women to the category of those (‘similar in their ability or inability to work’) whom the employer accommodates.”  The specter of Gilbert loomed there again: “After all, the employer in Gilbert could in all likelihood have made just such a claim.”  And the Court said that an employer that accommodates some employees, but not pregnant employees, must defend that refusal by pointing to reasons that are “sufficiently strong to justify the burden” on pregnant workers.  Further, “[t]he plaintiff can create a genuine issue of material fact as to whether a significant burden exists by providing evidence that the employer accommodates a large percentage of nonpregnant workers while failing to accommodate a large percentage of pregnant workers.”

At the end of Chapter 35, Joanna attached an addendum, which did not appear in the original columns that she drew on for the chapter.  In that addendum, Joanna notes, correctly, that “[l]ike most Supreme Court rulings on discrimination law, Young v. United Parcel Service, Inc. raised more questions than it answered.”  But the Court did clearly limit employers’ options to provide accommodations to categories of nonpregnant workers while denying those same accommodations to pregnant workers who are just as capable of doing the job.  That decision struck a blow against employers’ treatment of pregnancy as sui generis—a phenomenon that has been widespread and has undergirded pervasive unequal treatment of women in the workplace.

Even as interpreted in Young, though, the Pregnancy Discrimination Act retains significant limitations.  Most important, the statute’s requirement to accommodate pregnant workers is entirely conditioned on a particular employer’s decision to accommodate nonpregnant employees who are similar in their ability or inability to work—something a plaintiff must prove in each case.  There is no general requirement to provide reasonable accommodations to pregnant workers.  As Joanna notes, particularly in Chapter 37, the proposed federal Pregnant Workers Fairness Act would impose such a general requirement to reasonably accommodate pregnancy.  She argues that “[a]n absolute right of accommodation would be particularly helpful for those women working in traditionally male-dominated occupations that tend to involve greater physical demands and hazards”; the PWFA “could thus help break down the entrenched occupational segregation in the American economy.”

In the past, gender-specific benefits like the PWFA have been extremely controversial among American feminist activists.  Many feminists have believed that guaranteeing employment accommodations to women encourages employers to decline to hire women in the first place.  (Nine to Five’s discussion of the Family and Medical Leave Act, particularly in Chapters 44 and 45, nicely discusses these issues, and shows that even formally gender-neutral mandates are often, in practice, gender specific.)  The PDA’s conditional and comparative approach to accommodation elided this controversy, by stating simply that an employer who accommodated nonpregnant employees couldn’t treat pregnant workers any worse if they were just as able to do the job.  But although Young was a victory for the plaintiff, the Court’s new doctrinal framework ironically highlights the burden of marshalling such comparative evidence in each and every case.  To achieve equal citizenship in the workplace, somethink like the PWFA is an essential step.  And Nine to Five helps us see why.


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