This morning, I ran across this Tweet from a pro-life organization:
Pregnant Women Shouldn’t be Fired Because They’re Having a Baby, Not Aborting http://t.co/UhzuPGOuhF#StandWithPeggypic.twitter.com/ZuZhLCJeyW
— LifeNews.com (@LifeNewsHQ) December 3, 2014
Later in the day, I got this release from the Population Connection Action Fund, which I gather is not exactly what anyone would call rabidly pro-pregnancy:
This morning the U.S. Supreme Court heard oral arguments in Peggy Young v. UPS, a pregnancy discrimination case. We are appalled that in the year 2014 pregnant women continue to face injustice in the workplace at the hands of employers whose actions are wrongly legitimized by lower courts’ narrow interpretation of the Pregnancy Discrimination Act.
Population Connection Action Fund stands firmly with Ms. Young in her fight for rectitude against UPS. No pregnant woman in the United States, or any country for that matter, should be stripped of her right to receive valid accommodations from an employer if she has a substantiated medical need…
I’m glad to see folks from both sides of the Culture Wars banding together to defend a woman in need.
Of course, if you read a bit further in each organization’s statements, you get to language where they are gulfs apart.
But I take these blessed moments of togetherness wherever I can find them.
Here’s an NPR story about the case that brought them together…
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I’m not defending UPS here, I think what they did is appalling, but I do have one question. Since when is being pregnant a disability?
Since it makes one less able. Making it a “disability” gives women thus disabled access to the protections of the ADA.
But I mean, it’s a choice, right? Abortion arguements aside for a moment, women get pregnant and choose to remain pregnant and carry a child to term. One does not “choose” to have a bad back or cancer (well maybe lifestyle choices) or to lose a limb in an industrial accident.
Granted, different people have different abilities and needs during pregnancy. I ran a 1/2 marathon a few years ago and a young lady who was heavily laden with child zipped past me. She was at least 8 months pregnant, but many moms-to-be need bed rest. This UPS lady was somewhere in the middle, obviously. I still think that if you choose to have a disability, why should your employer have to accomodate it?
Here’s an example: Silence trains hard and gets a contract playing hardball, as a Southpaw relief pitcher for the Yankees. Signs a 5 year deal for millions of dollars. He then proceeds to chop off his left hand with a circular saw (on purpose), rendering him incapable of throwing his patented knuckleball. Do the Yankees now need to accomodate his disability? Does Major League Baseball need to accomodate his disability? How should they do it if he can’t pitch, and throws like a sissy with his right hand?
Your first mistake was signing with the Yankees, but I digress…
Under your fact pattern, you’re completely disabled as a pitcher, and you cannot perform the essential functions of a job even with a reasonable accommodation. Therefore you are not “qualified,” and you will receive no ADA protection.
See Weyer v. Twentieth Century Fox Film Corp., 198 F.3d 1104, 1108 (9th Cir. 2000) (“A totally disabled person who cannot ‘perform the essential functions of the employment position’ with or without reasonable accommodations thus cannot be a ‘qualified individual’ entitled to sue under Title I of the Act.” (citing Kennedy v. Applause, Inc., 90 F.3d 1477, 1481 (9th Cir. 1996))).
A Plaintiff requesting an accommodation bears the burden of showing the accommodation is reasonable. What’s reasonable? Well, the statute doesn’t define it. Also, you can’t put an “unreasonable hardship” on your employer, either. That’s not defined, either.
My guess is that a Court isn’t going to give you much of an accommodation in a professional sports setting in your fact pattern because anything you ask for would fundamentally alter the game of baseball and therefore be an undue burden on your employer.
I hope you got guaranteed money in that contract!
What’s choice got to do with it? If one chooses to smoke and gets lung cancer or COPD, one is still disabled. If one chooses to go rock climbing, like my fool nephew, and gets injured, one is still disabled.
The point of ADA is to include workers who can still work with reasonable accommodations in the workforce. Seems like a good idea to me.
Pregnancy isn’t a disability; it is the result of a joint procreative effort between a man and a woman. That’s what makes UPS’ position on this so untenable; the company is penalizing the party who is doing the heavy lifting for society.
Carry the logic out and one would have the situation where down the road UPS is firing fathers, or men who may potentially become fathers, because they cost too much to retain because they want to be paid well enough to solely support a family… Who is the company to turn to to do their heavy-lifting? Old people?
Now wait a minute, y’all. The plaintiff herself said, “Pregnancy is not a disability.” I agree. It’s a perfectly healthy condition that just slows you down for a short while.
So… can she claim protection under the ADA? I find this confusing.
Legally pregnancy is a “disability.” This gives lots of good protections. You may not find that it falls under the colloquial meaning of “disability” but I’d like to hear from some mothers who agree with you.
I believe many women find it disabling–morning sickness, being huge and all the joint and foot issues that entails.
“Disability” is not the same as “unhealthy”– one may be a perfectly healthy blind person or deaf person.