High Court Considers Pregnancy

Friday, December 12, 2014
Washington — The U.S. Supreme Court is grappling with how employers should treat pregnant workers like Peggy Young, who sued UPS after the parcel company forced her to take unpaid leave rather than accommodate a doctor’s recommendation that Young lift no more than 20 pounds.

It’s a question many other countries settled long ago.

Take Germany. And a law called “Mutterschutz Gesetz,” or “The Maternity Protection Act.”

It works like this: As soon as a woman discovers she’s pregnant, she tells her employer. The employer automatically modifies the workers’ job duties so she can continue to work without harming herself or her pregnancy. Women in physical jobs may be transferred to desk jobs for the duration of their pregnancies, for instance, or prohibited from lifting heavy loads.

Then, six weeks before the due date, the pregnant worker goes out on paid leave. That paid leave extends eight weeks after delivery. The worker cannot be fired during her pregnancy and up to four months after delivery. She continues to accrue vacation time during paid leave. And, when she’s ready to return to work, her employer must guarantee her her same job, or a similar one at the same pay.

The International Labor Organization recommends that pregnant and nursing workers, should the medical need arise, be given temporary alternative work, transferred to another post or, as a last resort, put on paid leave. And a quick survey of their report, Maternity and Paternity at Work, shows Germany isn’t the only country that does so.

Of 160 countries with information on pregnancy accommodation, 84 provide them, including Iceland, France, Ethiopia and Iran. Even in Afghanistan, women are to be routinely assigned to lighter work during the course of their pregnancies, the report noted.

In Bulgaria and Brazil, pregnant workers are transferred if their jobs are deemed to pose a risk to their health. And in Belarus, Bolivia, Bosnia and Herzegovina, Burkina Faso, Chile, Gabon, Italy, Seychelles, South Africa, Uzbekistan and Vietnam, pregnant women who are transferred to lighter duty for medical reasons shouldn’t entail a loss in benefits or pay.

Luxembourg and Portugal give pregnant workers their full pay if no medically necessary alternatives or accommodations exist and they must go on leave. “In the Dominican Republic and the United States,” the report says, “any such leave is unpaid.”

The United States is the only advanced economy in the world that does not have a paid parental leave policy at all. The Family and Medical Leave Act gives full-time workers who’ve been with a company of over 50 employees for at least a year 12 weeks of unpaid leave. With those stipulations, it doesn’t cover 40 percent of the workforce.

The ILO report is quick to mention that pregnancy discrimination “is endemic everywhere.” In the United Kingdom, human rights officials estimate about 7 percent of pregnant women, or 30,000 per year, lose their jobs due to pregnancy every year.

In the United States, pregnancy discrimination claims grew by 31 percent between 2005 and 2010, the ILO report said, faster than all other job bias claims.

The Supreme Court, which tread gingerly around the issue during oral arguments Dec. 3, will decide by June whether Young has the right to make her case about what’s fair in a jury trial.

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