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Gillian Thomas: Because of Sex

Everyone deserves a safe delivery, the story behind the Supreme Court case Young v. United Parcel Service, Inc. (2015)

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Image courtesy of St. Martin's Press

An excerpt from Because of Sex: One Law, Ten Cases, and Fifty Years That Changed American Women’s Lives at Work out March 8, 2015 from St. Martin’s Press

By eight o’clock on the morning of December 3, 2014, the crowds had begun to gather in front of the Supreme Court. Under a pale, steely sky that matched the gray and white marble of the Court’s famed façade, clusters of mostly female spectators huddled against the chill. They clutched signs—some of them handwritten in brightly colored markers, others mass-produced and bearing the names of various women’s advocacy groups—that proclaimed “Stand with Pregnant Workers,” “Protect People, Not Packages,” and “Everyone Deserves a Safe Delivery.”

The oral argument scheduled to begin two hours later would mark the first time in nearly a quarter century that the Supreme Court had considered the issue of on-the-job pregnancy discrimination. The last time had been in 1991, when the women of Johnson Controls had asked the Court to invalidate the company’s “fetal protection policy” that kept women out of the best-paying jobs unless they could prove infertility. The Court’s unanimous decision in women’s favor had been hailed as another step toward equality, vesting women—not their employers— with responsibility for safely managing their reproductive lives.

But more than twenty years later, the Court was faced with a question that was something of a bookend to Johnson Controls: If safely managing a pregnancy meant that a woman wanted to temporarily avoid the hazards of her workplace, what rights did she have? And what were her employer’s obligations?

To judge by the palpable emotion among the demonstrators on the Supreme Court steps that December morning and the ubiquitous press coverage in the preceding weeks, the case had galvanized collective frustration with the status quo—both for pregnant women and for mothers in this country. More than thirty-five years after the Pregnancy Discrimination Act became law and twenty years after the Family and Medical Leave Act was enacted, women were still losing income, if not their jobs, because of pregnancy. As one commentator wrote at the time, “[T]he simple—and celebrated—act of having a baby turns out to be a stunningly precarious economic and professional choice.”

The woman at the center of the maelstrom on the courthouse steps, an earnest, bubbly single mother named Peggy Young, was stunned to find herself there, surrounded by signs displaying the Twitter hashtag “#IStandWithPeggy.” A “private, to-myself kind of person,” Young had unwittingly launched her journey onto the national stage eight years earlier, while working as an “air driver” for shipping giant United Parcel Service. Each morning starting at 6:30, Young delivered packages that had arrived overnight by air at UPS’s Landover, Maryland, facility, driving a route covering Annapolis and the surrounding area. After making those deliveries, she would punch out, and at 11:00 a.m., she’d begin working at her other job, delivering flowers for a company named Floral Express.

Beginning in the summer of 2005, Young and her husband began trying to have a baby by in vitro fertilization. The first attempt resulted in a pregnancy, but Young miscarried shortly thereafter. A second attempt failed too. But in July of 2006, while on a leave of absence, Young got pregnant. At the end of her first trimester, she contacted Carol Martin, UPS’s occupational safety and health manager for her district, to discuss resuming her duties.

Young was perplexed when Martin instructed her to obtain a note from her medical provider outlining her “restrictions.” Young hadn’t been told she had any restrictions, and her pregnancy wasn’t high risk (nor were two prior pregnancies she had carried to term). Her job wasn’t particularly strenuous either; because air shipping is more expensive, by weight, than ground, the packages Young delivered were small and light, usually ten- by thirteen-inch envelopes that fit on the passenger seat next to her. Indeed, throughout her second full-term pregnancy, she’d regularly lifted and carried far heavier—namely, her three-year-old son—and had worked right up until the moment she went into labor.

But in an effort to be agreeable—“I didn’t know any better,” she said later—Young relayed Martin’s request to her midwife. “I explained to her what I did for a living: I drove a minivan, I delivered small envelopes.” Young recalled her midwife’s puzzled response. “Why do you need a note? There’s nothing wrong with you physically.” So that Young could comply with UPS’s directive, though, she proposed a compromise. “She said, ‘I’ll write you a note recommending you not lift over twenty [pounds].’”

Young rarely had to lift packages that heavy, much less the seventy pounds that her job description listed as the maximum weight that air drivers should be able to carry. In any event, because she shared territory with another driver, on those few occasions when a heavy package was in the day’s shipment, Young’s coworker didn’t mind delivering it.

But health and safety manager Martin told Young that under UPS’s policy, she could not continue to work at all with her lifting “restriction” in place. That policy, contained in UPS’s collective bargaining agreement with Young’s union, allowed for employees to be temporarily reassigned to “light duty” work or desk jobs—in just three circumstances—none of which applied to pregnancy: when a worker’s impairment was due to an on-the-job injury; when it qualified him or her for a “reasonable accommodation” under the Americans with Disabilities Act; or if he or she became ineligible, under Department of Transportation regulations, to hold a commercial driver’s license (which could result from any number of medical conditions but also if the employee had a conviction for driving under the influence).

Young begged to return to work, assuring Martin that she was willing to perform at full capacity without an accommodation, but Martin refused. Desperate, Young then approached the senior manager at the Landover facility, Myron Williams. She explained her situation and her eagerness to resume her job without limitation. According to Young, Williams told her “not to come back in the building until she was no longer pregnant because she was way too much of a liability.” Another supervisor to whom she pleaded her case told her the same thing.

By the end of 2006, Young was out of options. Just fourteen weeks pregnant, she went out on an unpaid leave of absence for the rest of her pregnancy. Although UPS coded her in its personnel system as “disabled,” she couldn’t collect any disability benefits unless she got a new note from her midwife that would declare her unfit for any work. That simply wasn’t true; in fact, Young continued to perform her duties with Floral Express without any modifications right up until her due date. In addition to losing between $400 and $500 a week in wages from UPS, she stopped accruing pension credit, and lost her health benefits. Although Young was lucky enough to get medical coverage through her husband’s military insurance, it wasn’t anywhere near the gold standard offered by UPS; she had to switch providers and deliver her baby at a hospital more than two hours from her home, instead of at the one fifteen miles away, where UPS insurance was accepted. Young delivered her daughter, Triniti, in late April 2007, and in late June, after being without her UPS paycheck for roughly six months, she went back to work. By then, she had a lawyer.

Gillian Thomas is a Senior Staff Attorney with the American Civil Liberties Union’s (ACLU) Women’s Rights Project. She previously litigated sex discrimination cases at the U.S. Equal Employment Opportunity Commission and Legal Momentum (formerly NOW Legal Defense and Education Fund). Her work has appeared in publications including Slate and The Atlantic, and she has been interviewed by NPR, The New York Times, and The Wall Street Journal, among others. She lives in Brooklyn.

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