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Does the Supreme Court Care About Pregnant Women?

On Wednesday, the Supreme Court heard oral arguments in a pregnancy discrimination case, Young v. UPS. UPS worker Peggy Young alleges that her supervisor told her to come back to work when she was no longer pregnant after her doctor advised her not to lift more than 20 pounds in the first 20 weeks of pregnancy and then 10 pounds thereafter. Because her position required her to occasionally lift up to 70 pounds, she was place on unpaid leave without benefits.

I literally shudder when I think about Ms. Young’s position. At that time she’d been at UPS for almost seven years. She was pregnant after two unsuccessful rounds of IVF, but then she was stripped of her medical benefits and her paycheck.

And I thought swollen ankles and heartburn were bad.

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Ms. Young claims that she tried to explain to her manager that her position rarely required her to lift packages over 20 pounds. She also informed her manager that her UPS colleagues had agreed to assist her with any packages over 20 pounds. Failing that, she said she would be willing to work in a different, lighter-duty position.

Unfortunately, UPS was having none of that. Her manager determined that because she couldn’t lift 70 pounds, she was incapable of performing the essential duties of her job. Then, she determined that Ms. Young was ineligible for a “light duty” assignment. Why? Well, to qualify for a “light duty” assignment, Ms. Young would have had to demonstrate that she was suffering from an on-the-job injury, which would have been protected under the Americans With Disabilities Act. Another way she could get to a lighter duty position was if she had lost driving privileges (i.e., if she had her license revoked because she was, say, convicted of driving while intoxicated).

Can you imagine your employer, to whom you’ve given seven years of service, telling you to scram until you were no longer pregnant? This was 2006, not 1950.

God, if only she had been a convicted drunk driver, then she could have accommodations that would allow her to keep her job and her access to prenatal care.

But for her pregnancy, Ms. Young received zero accommodations. And that was in spite of the commands of the Pregnancy Discrimination Act of 1978 that employers must treat pregnant workers as well as they treat those who are “similar in ability or inability to work.”

Equally troubling, when Ms. Young approached higher levels of UPS management to press for the right to return to work, she was told she was “too much of a liability” while pregnant, and that she should return when she was “no longer pregnant.”

Can you imagine your employer, to whom you’ve given seven years of service, telling you to scram until you were no longer pregnant? This was 2006, not 1950. And this wasn’t some piddly little company that no one’s ever heard of. It was UPS. There’s a UPS truck blocking the entrance to my garage right now.

Ms. Young had a healthy baby and returned to work at UPS in mid-2007. (Super extra bonus points to Ms. Young for her abiding loyalty.) Then she did us all a huge favor: She initiated a ground-breaking lawsuit by filing a claim with the Equal Employment Opportunity Commission, which wound its way through the lower courts to the desk of the Supreme Court Justices.

Ms. Young’s argument is simple: if other workers are allowed to get lighter assignments because they are temporarily disabled, shouldn’t the same opportunity be available to those workers whose doctors have limited the kind of work they can do during pregnancy?

The core question concerns the extent to which the highest court in this country will accord women’s reproductive health needs equal treatment.

While my employers did not seek to remove me during my pregnancies, many women who work in traditionally male or physically demanding jobs face discrimination once they are pregnant. These women, who may need to sit on a stool during their third trimester instead of climbing a ladder, have to choose between keeping their livelihood (and often their medical insurance) and the health of their babies or themselves.

Notably, UPS has since announced that starting in January 2015, it will provide accommodations to pregnant workers who need them, but that announcement has not dampened its ardor for fighting Ms. Young’s claims in court.

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While it is a good sign that the Supreme Court agreed to add this case to its docket and issue a ruling on the contours of the Pregnancy Discrimination Act, the Hobby Lobby decision from this June casts a shadow over any premature optimism about its ultimate ruling. Remember: in Hobby Lobby, a majority of the Court threw women’s reproductive rights under the bus and allowed employers to carve out birth control from insurance coverage where the employers objected on religious grounds. Never mind that a woman’s right to choose when she will have a baby has a massive impact on both her health and her financial success. The Hobby Lobby decision does not bode well for a decision in Ms. Young’s case. In both, the core question concerns the extent to which the highest court in this country will accord women’s reproductive health needs equal treatment with other health needs (like those that affect men).

For now, here’s hoping that the Supreme Court acts in concert with women’s reproductive rights and supports our right to work and have a family at the juncture when it all begins: pregnancy.

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