The Wall Street Journal is attacking the equal employment provision of the Pregnancy Discrimination Act of 1978, claiming that this historic civil rights law's protection is unnecessary since “market forces” will ultimately reduce such workplace discrimination on the basis of sex.

On December 3, the Supreme Court heard oral arguments in Young v. UPS, a pregnancy discrimination case where former UPS driver Peggy Young alleges that her employer failed to treat her equally during her pregnancy. Even though UPS had previously accommodated other drivers who were unable to perform the specific duties required for their jobs, the company refused to reassign Young after her doctor told her she should avoid lifting more than 20 pounds. Because of this unequal treatment, Young is arguing that UPS violated the Pregnancy Discrimination Act, whose statutory text clearly guarantees pregnant workers the right to be “treated the same for all employment-related purposes” as other workers “similar in their ability or inability to work.”

The Journal isn't convinced that Young has been discriminated against, however, or if she was, whether she deserved the protection of civil rights law. In a December 2 editorial, the Journal admitted that UPS had “acted like dunderheads” when they refused to accommodate Young's pregnancy and argued that "[s]ympathetic plaintiffs make good headlines, but they often make bad law." The Journal rejected Young's sex discrimination claim, suggesting that UPS's “pregnancy-neutral policies” were sufficient and that Young was asking for “a special accommodation” that her employer shouldn't have to provide.

The editorial went on to criticize Young's decision to sue, suggesting that she should have skipped the lawsuit and let “market forces” correct UPS' “dumb corporate behavior”:

Typically, discrimination claims are brought either by showing disparate treatment of an individual or disparate impact on a group based on statistical evidence. Ms. Young took neither path. Her argument is that UPS is liable because it failed to extend a special accommodation beyond the neutral policies that otherwise cover workplace disability.

The effect would expand the boundaries of discrimination law and ramp up penalties for businesses. If Ms. Young's theory succeeds, Title VII would have a third category of discrimination for which employers could be accused of discrimination even if their policies were neutral.

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In the real world, most employers aren't in the habit of picking fights with their pregnant employees to make their lives miserable. UPS had accommodated Ms. Young during previous pregnancy-related requests, including rounds of in vitro fertilization. We agree with Ms. Young that UPS managers acted like dunderheads when they sent a longtime employee on unpaid leave, but not being nice enough is not the same as discrimination under the law.

The answer to dumb corporate behavior is market forces, not more legislating through regulation or the courts. UPS has since changed its policy and other companies have been put on notice. We hope the Justices will resist creating a long-term problem to fix a temporary condition.

Right-wing media frequently claim that civil rights laws are unnecessary to protect against private-sector discrimination because the invisible hand of capitalism will punish such behavior instead. This ahistorical claim is often used to reject the need for Title II of the Civil Rights Act of 1964, which outlawed segregated lunch counters. Recently, this argument for a hands-off approach to discrimination has re-emerged in support of allowing businesses to refuse to serve people on the basis of sexual orientation or gender identity as well.

But just as relying on “market forces” alone proved to be unsuccessful at ending whites-only public accommodations, it is unlikely to address the growing problem of pregnancy discrimination in the workplace.

The Journal's argument that policies that are “neutral” toward pregnant and non-pregnant employees are not discriminatory toward women has already been considered and rejected by Congress almost 30 years ago. The entire point of the Pregnancy Discrimination Act was to overturn a conservative Supreme Court opinion that held “it is impossible to find any gender-based discriminatory effect in this scheme simply because women disabled as a result of pregnancy do not receive benefits; that is to say, gender-based discrimination does not result simply because an employer's disability-benefits plan is less than all-inclusive” -- the same view the Journal is now recycling.

As the National Women's Law Center pointed out, this is no longer good law:

The PDA unambiguously states that pregnant workers must be treated as well as those “similar in their ability or inability to work.” Legislative history confirms that Congress didn't choose this language by accident. For example, the Senate committee report stated that the PDA was meant to ensure that pregnant workers “must be accorded the same rights, leave privileges and other benefits, as workers who are disabled from working.” The House report even specifies that this would include practices such as “transferring workers to lighter assignments.” Under law, then, pregnant workers who cannot perform physical tasks such as lifting over 25 pounds should be accommodated if their employer would accommodate workers with disabilities or injuries who have a similar restriction.

The Supreme Court has subsequently confirmed that the prohibition on sex discrimination on the basis of pregnancy includes an equal employment guarantee.

But the Equal Employment Opportunity Commission (EEOC) still found it necessary to update its guidelines in July of this year to address the continued problem of pregnancy discrimination at work. The new guidelines reiterate that “an employer cannot lawfully deny or restrict light duty based on the source of a pregnant employee's limitation. Thus, for example, an employer must provide light duty for pregnant workers on the same terms that light duty is offered to employees injured on the job who are similar to the pregnant worker in their ability or inability to work.” According to the EEOC, the changes were necessary because “in the years since the PDA was enacted, charges alleging pregnancy discrimination have increased substantially,” and “discrimination complaints have risen at a faster rate than the steady influx of women into the workplace ... [which] suggests that pregnant workers continue to face inequality in the workplace.”

Consistent with its current approach, the Journal also criticized the new guidelines when they were announced.

The editorial's claim that Young was asking for a “special accommodation” beyond what UPS' supposedly neutral policies already provided is also misleading, and has already been rejected by the Supreme Court. In reality, UPS "routinely provided" reassignments not only to other employees suffering from disabilities covered by the ADA, but also to drivers who had lost their commercial licenses after DUI convictions or because of "off the job" health problems. UPS refused Young this kind of routine reassignment that it offered to others similarly situated, and she was instead placed on unpaid leave and lost her medical coverage.

As Hofstra law professor Joanna Grossman explained:

The second clause [of the Pregnancy Discrimination Act], which provides that pregnant women have the right to be treated the same as others who are “similar in their ability or inability to work,” was designed to provide a comparison group by which pregnant woman could gauge their right to benefits or accommodations. Pregnant women have no absolute right to accommodations, but if temporarily disabled workers receive them, then pregnant workers are entitled to them as well. Moreover, under a 1987 ruling from the Supreme Court in California Federal Savings v. Guerra, the second clause provides a floor but not a ceiling on benefits and accommodations, so employers can choose to treat pregnant workers more favorably than comparably disabled workers. The second clause, however, has been routinely misinterpreted and misapplied by lower courts, leading to both great confusion about its scope and meaning and a dilution of the rights Congress intended to bestow.

By its terms, the second clause of the PDA provides, at best, a comparative right of accommodation. It does not give pregnant women any absolute right to have pregnancy-related disability accommodated with leave or modifications to the job. Instead, it creates a comparison group to whom pregnant women can compare themselves to gauge their possible entitlement to an accommodation. If no one gets benefits or accommodations, pregnant women have no right to them either. But, the straightforward language of the second clause would suggest, if temporarily disabled workers receive accommodations, then pregnant women must also receive them.

Photo of Peggy Young via screengrab/NBC 4 Washington