Choice at Work: Young v. United Parcel Service, Pregnancy Discrimination, and Reproductive Liberty

In deciding Young v. United Parcel Service, the Supreme Court has intervened in ongoing struggles about when and whether the Pregnancy Discrimination Act of 1978 (PDA) requires the accommodation of pregnant workers. Drawing on original archival research, this Article historicizes Young, arguing that the PDA embodied a limited principle of what the Article calls meaningful reproductive choice. Feminist litigators first forged such an idea in the early 1970s, arguing that heightened judicial scrutiny should apply whenever state actors placed special burdens on women who chose childbirth or abortion. A line of Supreme Court decisions completely rejected this understanding of reproductive liberty. However, choice arguments rejected in the juridical arena flourished in Congress, during debate about the PDA. For a variety of strategic and ideological reasons, legal feminists and antiabortion activists turned to legislative constitutionalism to give meaning to the idea of reproductive liberty. While not requiring employers to provide any accommodations, the PDA prohibited employers from placing special burdens on women’s procreative decisions. The history of the meaningful-choice principle suggests that while the Court reached the right outcome, Young still falls short of providing women the protection intended by the framers of the PDA. By a 6-3 vote, the Court vacated a Fourth Circuit decision vindicating United Parcel Service’s “pregnancy-blind” employment policy—that is, the policy effectively excluded pregnant workers but did not formally categorize them on the basis of pregnancy. In its application of the McDonnell-Douglas burden-shifting analysis, Young removed some of the obstacles previously faced by pregnant workers relying on disparate treatment theories. However, the Court still assumes that employers could have legitimate reasons for discriminating against pregnant workers beyond their ability to do a job, creating precisely the kind of burdens on reproductive decision-making that the PDA was supposed to eliminate. The history of the meaningful-choice principle strengthens the arguments against pregnancy-blind policies that are available after Young, including disparate treatment, disparate impact, and disability accommodation under the Americans with Disabilities Act. Ultimately, however, the history studied here shows that the promise of litigation after Young may well still be limited. Legislation, rather than litigation, may be the most promising path for expanding protections for pregnant women