Déjà Vu Pregnancy Discrimination

The New York Times Dorothy J. Samuels
December 2, 2014

When the Supreme Court hears argument in a major pregnancy discrimination case on Wednesday, Justice Ruth Bader Ginsburg will be returning to familiar legal terrain.

In the 1970s, Justice Ginsburg was a pioneering litigator working for women’s equality as the founding director of the ACLU’s Women’s Rights Project.   One aim was combating pregnancy discrimination and the resulting denial of equal opportunity and equal status in society.

Wednesday’s case involves Peggy Young, a former driver for United Parcel Service. When she became pregnant, she was forced to take unpaid medical leave with no insurance benefits because the company refused to accommodate her temporary need for light duty. ” Meanwhile the company did accommodate other workers though not all with temporary physical limitations.  The central question is whether that corporate behavior violated the Pregnancy Discrimination Act, a 1978 law that Justice Ginsburg, in her long ago advocacy role, helped to pass.

Justice Ginsburg called for its enactment by Congress in a June 25, 1977 op-ed piece in this newspaper co-authored with a colleague, Susan Deller Ross. The legislation was needed, they explained, to overturn the Supreme Court’s 1976 ruling in General Electric Co. v. Gilbert. In that case, the majority said employers could deny pregnant women benefits available to other workers (an obvious misreading of Title VII of the 1964 Civil Rights Act).

Unfortunately, neither that history, nor the statutory language clarifying that pregnant workers must be given the same accommodations as other workers , prevented a lower federal appellate court from ruling against Ms. Young’s claim, giving rise to her Supreme Court showdown.

Kathleen Peratis, a lawyer in private practice who succeeded Justice Ginsburg at the Women’s Right Project years ago, spelled out a worrisome possible outcome. The court, she said, could rule that employers may deny pregnant workers benefits available to other workers, so long as they’re not available to all other workers like those injured in off-the-job accidents, for example.

That would turn the clock back nearly 40 years, ” said Ms. Peratis, virtually erasing the Pregnancy Discrimination Act from the books. “