Pregnant Women Shouldn’t be Fired Just Because They’re Having a Baby, Not Aborting

Opinion   |   Clarke Forsythe   |   Dec 3, 2014   |   11:14AM   |   Washington, DC

On Wednesday, the Supreme Court will hear a landmark appeal testing the effectiveness of the 1978 federal Pregnancy Discrimination Act. In Young v. United Parcel Service, the court will consider whether the act requires that UPS provide a “lighter duty accommodation” to pregnant workers when it provides such an accommodation to other workers.

One of the unfortunate cultural consequences of the Supreme Court’s sweeping decision in Roe v. Wade was that it resulted in considerable pressure on some pregnant women to abort. Roe taught that abortion is a quick, easy, less-expensive choice and sent the message to many that it might be unreasonable for a woman not to exercise her “constitutional right.” And poor women have faced even greater pressure when taxpayer funding subsidized abortions. Numerous testimonies, incidents of domestic abuse and lawsuits have documented this, year after year. Numerous homicides and assaults of pregnant women have been attributed to their refusal to abort.

peggyyoung2Facing pressure from men and employers, women needed legal support if their choice was life. Almost all states after Roe enacted their own version of pregnancy discrimination acts. And, today, at least 15 states have some form of legislation prohibiting coerced abortions.

At the national level, a bipartisan coalition in Congress introduced the federal Pregnancy Discrimination Act in 1977. The legislation had two primary goals: to reduce pressure on women in the workforce to have an abortion, and to protect the health of pregnant mothers and their unborn children during employment.

The act is relatively short and simple. It contains two clauses. The first says that sex discrimination prohibited by Title VII includes “discrimination on the basis of pregnancy.” The second says that pregnant women “shall be treated the same for all employment related purposes … as other persons not so affected but similar in their ability or inability to work.”

But the goals of the law have yet to be fulfilled 36 years later. Lower federal courts have given a restrictive interpretation to the act, in contrast to its plain language.

Peggy Young’s case is an unfortunate example. Young was working as an early morning “air lift” driver with UPS in 2006. She became pregnant and brought in a letter from her midwife recommending that she not lift more than 20-pound boxes during her pregnancy, and no more than 10-pound boxes in late pregnancy. UPS had a widespread accommodation practice, but denied the “lighter duty” accommodation to Young.

Though one federal court properly concluded that a pregnant worker “must demonstrate only that another employee who is similarly situated in her or his ability to work received more favorable benefits,” another federal court held to the contrary and ruled against Young, stating, “to find otherwise would be to transform an anti-discrimination statute into a requirement to provide accommodation to pregnant employees, perhaps even at the expense of other, non-pregnant employees.”

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But Young didn’t ask for a new or special accommodation, only that the “lighter duty” accommodation provided to others should have been available to her. The plain language of the act requires employers to provide pregnant workers with the “same” accommodations that they provide to other employees who have “a similar ability or inability to work.”

The court has the opportunity to wipe away the judicial gloss and apply the act as written. Thirty–six years after the act was enacted, it’s time that the law was fairly applied to fulfill its goal to assist working women who want a family, too. The court may not be able to fix, in one case, all of the negative cultural fallout of Roe, but at least it can fairly apply the legal remedy that Congress enacted.

Even UPS now agrees. In October, UPS reversed its policy toward pregnant workers and decided to grant the same “light-duty” accommodations to pregnant workers that it grants to other employees. Hopefully, the Supreme Court will reach the same conclusion. Note: Clarke Forsythe is the senior legal counsel at Americans United for Life.