The Fourth Circuit Court of Appeals gave pregnant women and advocates a very disappointing decision last week. Peggy Young asked for light duty during her pregnancy, at her doctor’s recommendation. Her employer, UPS, denied her request even though it had a policy of giving light duty to a lot of other workers—such as employees with disabilities and those with on-the-job injuries. She was pushed onto unpaid leave and lost her health insurance.

The Pregnancy Discrimination Act of 1978 says that employers have to treat pregnant workers the same as other employees who are similarly situated in their ability or inability to work. This means that you can treat everybody poorly if you want to, but you cannot decide to treat pregnant workers worse than everyone else. So how did the court decide it was fair to give light duty to some workers, but not pregnant workers?

Basically, according to the court, if your policy says “we cover X, Y, Z, but not pregnancy,” then it’s illegal. But if your policy (which is identical in practice) reads “we cover X, Y, and Z” and you don’t mention pregnancy, then you are good to go—even though the effect on workers struggling to stay healthy and earn money to feed a new baby is exactly the same. The court says these policies are “pregnancy-blind,” but we disagree. We don’t think companies should be able to get away with treating pregnant workers worse than others just because their lawyers told them not to be explicit about it.

The Pregnancy Discrimination Act was actually passed, in part, in response to a popular practice of the 1970s: company disability plans covered various ailments and injuries, but not pregnancy. A Supreme Court case said that this was okay because it didn’t discriminate against women—just pregnant persons, who coincidentally happened to all be women. Congress responded with legislation making clear that discriminating against pregnant persons is discrimination against women. Now, here we are almost 35 years later and companies are still treating pregnant workers worse than their other workers. And courts again are misinterpreting Congressional intent. Congress must respond like it did so many decades ago—by passing legislation, specifically the Pregnant Workers Fairness Act (PWFA). The PWFA would explicitly grant pregnant employees the right to a minor job modification in order to stay healthy and at work, unless to do so would cause an undue hardship on the business. This would make it undeniably clear that pregnant workers must be granted the same rights as workers with disabilities.

Although legislation would be the best avenue to ensure pregnant women their rights, there is some hope for litigators—the Young decision relied on an old version of the Americans with Disabilities Act, because the underlying events took place a while ago. Since then, Congress passed the elegantly named Americans with Disabilities Act Amendments Act (ADAAA).

The court said that to rule in favor of Peggy Young would be to grant pregnant workers special treatment over some other workers, such as a man who injures his back while lifting his infant. However, under amended federal law (the ADAAA), the guy lifting his infant most likely would be covered and UPS would have to give him light duty. If he would be covered, then the woman who has back pain from her pregnancy should be covered too. Otherwise, pregnant women would get the opposite of special treatment and would be treated worse than everyone else who has work restrictions. The new disability law expanding coverage has raised the floor for everyone. It is time for courts to recognize this fact.

Cross-posted from A Better Balance’s Blog.

About A Better Balance: A Better Balance is a national legal advocacy organization dedicated to promoting fairness in the workplace and helping workers meet the conflicting demands of work and family.  Through legislative advocacy, litigation, research, public education and technical assistance to state and local campaigns, A Better Balance is committed to helping workers care for their families without risking their economic security.

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