By: Thomasin Sternberg
The impact women have on the workforce is not minute. In 2010, 46.8% of the labor force in the United States was comprised of women. Yet many working women feel pressured to choose between having families and advancing their careers. The pressure to make this choice is detrimental to the advancement of women, leading to gender discrimination and inequality. According to a study published by UC Hastings College of Law, 43% of working women leave the work force to raise their children.  With women in such great numbers ultimately choosing family over work, many employers are mindful of how this choice will effect them when making hiring, firing, and promotion decisions. Oftentimes this leads to gender-based discrimination in the work place when employers give preferential treatment to male employees to avoid the costs associated with maternity leave.
A number of federal and state laws have been enacted to address this inequity, however, as with most legislation, they tend to take a “one size fits all” approach that leaves many employees without a remedy. For example, the Family Medical Leave Act (FMLA) entitles covered employees, regardless of gender, to take up to 12 work weeks of unpaid, job-protected time off for specified family and medical reasons, including childbirth and caring for a child.  Covered employees are those who have worked at least 1,250 hours during the last 12 months for companies with 50 or more employees.  However, these limits on coverage leave many employees either outside of coverage and edged out of the work force at worst, or covered but without a paycheck at best. In fact, 40% of the American work force is not eligible for FMLA, and many of those who are eligible cannot afford to take 12 weeks of unpaid leave.
The Pregnancy Discrimination Act, which was passed in 1978 as an amendment to the Civil Rights Act of 1964, prohibits discrimination on the basis of pregnancy, childbirth, or other related medical conditions.  Under this act, women affected by pregnancy or other related conditions must be treated the same as any other employee who are similar in their ability or inability to work.  The Pregnancy Discrimination Act has given rise to litigation due to the fact that in many jobs, particularly those that require manual labor, pregnant women are often considered to be inherently dissimilar from other employers in their ability or inability to work. The issue is exacerbated by the fact that manual labor jobs tend to be more hazardous to pregnancy, less flexible in scheduling, and pay lower wages than traditional office jobs. It is for these reasons that women who are employed in low paying manual labor jobs are in the most need of the law’s protection.
The Supreme Court has granted a writ of certiorari to review Young v. United Parcel Service, in its October 2014 term, a case that hinges on this very paradox within the Pregnancy Discrimination Act. In Young, a delivery driver was required to lift 70lbs was given a 20lb lifting restriction by her doctor due to her pregnancy.  In accordance, the driver requested a light duty job that accommodated her restrictions.  Her employer denied her request, stating that she would be “too much of a liability” and that she “could not come back into the building until she was no longer pregnant,” offering her unpaid leave. The driver’s claim for pregnancy-based discrimination arises out of the fact that the company offers light-duty work accommodations to some workers, such as those who have been injured on the job, or those who have lost their Department of Transportation certification, but not to pregnant workers. In holding for the employer, the United States Court of Appeals for the Fourth Circuit interpreted the Pregnancy Discrimination Act as providing no entitlement to pregnant workers to any accommodations whatsoever. Rather, “employers can treat pregnant women just as badly as non-pregnant employees.” Pregnant workers who are denied light duty work, the court reasoned, have endured the same treatment as non-pregnant workers who are unable to perform their jobs.
In its review of Young, the Supreme Court will determine in what circumstance an employer that provides work accommodations to non-pregnant employees must provide an accommodation to pregnant employees who are “similar in their ability in their ability or inability to work.” The Court’s four-justice conservative wing will likely find the reasoning of the Fourth Circuit to be sound, while the four-justice liberal wing will likely be looking to overturn the decision of the court below. The swing vote, Justice Kennedy, has been known to vote conservatively in cases involving gender equality for women, and will likely leave pregnant employees without a remedy beyond unpaid leave.
Despite the uncertainty that awaits the parties in Young, current proposed legislation also seeks to provide more protection to childbearing employees than the Pregnancy Discrimination Act is able to give. The Pregnant Workers Fairness Act, introduced in May 2013 by Senator Robert Casey Jr., would make it unlawful for employers to fail to make reasonable accommodations for pregnant employees, and specifically makes it unlawful for employers to require pregnant employees to take a leave of absence if another reasonable accommodation can be provided.  This bill is modeled after the Americans with Disabilities Act, and has garnered the support of many women’s advocacy and civil rights groups, 32 co-sponsors, and an endorsement from President Obama. Regardless of the pending result in Young, the Pregnant Workers Fairness Act seeks to ensure that pregnant women will be able to keep working and supporting their families.
It is clear that the law has failed to address the strides women have made toward equality. Some employers already offer female employees flexibility in their work schedule and work duties because they want to attract the best talent, regardless of reproductive status. However, until every employer is required by law to make reasonable accommodations for pregnant workers, many women will continue to be faced with the difficult and unfair choice of work or family. In an economy where women make up half of the work force, the lack of accommodations for pregnant employees is, if nothing else, economically wasteful.
 Joanna L. Grossman, Making Pregnancy Work: Overcoming the Pregnancy Discrimination Act’s Capacity-Based Model, Yale J.L. & Feminism, 15, 29(2009).
 Joanna L. Grossman, Making Pregnancy Work: Overcoming the Pregnancy Discrimination Act’s Capacity-Based Model, Yale J.L. & Feminism, 15, 20 (2009).
 Id. at 22.
 Deborah L. Brake & Joanna L. Grossman, Unprotected Sex: The Pregnancy Discrimination Act at 35, Duke J. Gender L. & Pol’y, 67, 123, (2013).
 Young v. UPS, 707 F.3d 437, 440 (4th Cir. 2013) cert. granted, 134 S. Ct. 2898 (2014).
 Id. at 441.
 Id. at 445.
 Id. at 447-48.
 Young v. UPS, 707 F.3d 437, 450-51 (4th Cir. 2013) cert. granted, 134 S. Ct. 2898 (2014).
 ¶ 32,232 Dems Reintroduce Pregnant Workers Fairness Act- Proposed Legislation, Human Resources Management- Compensation Guide, May 16, 2013, at 1, available at 2013 WL 2075929.