SCOTUS Amicus Brief From Congress

8/11/2019 SCOTUS Amicus Brief From Congress

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No. 12-1226

IN THE Supreme Court of the United States

__________

PEGGY Y OUNG Petitioner,

v.

UNITED P ARCEL SERVICE , INC.Respondent. __________

On Writ Of CertiorariTo The United States Court of Appeals

For the Fourth Circuit __________

BRIEF OF MEMBERS OF CONGRESSAS MICI CURI E IN SUPPORT OF PETITIONER

__________

Emily MartinNATIONAL WOMENS LAW

CENTER11 Dupont Circle N.W.Suite 800Washington, DC 20036(202) 319-3049

Andrew H. BartCounsel of Record

Anne Cortina PerryJENNER & BLOCK LLP 919 Third AvenueNew York, NY 10022(212) [email protected]

Counsel for Amici Curiae


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iTABLE OF CONTENTS

INTEREST OF AMICI CURIAE ............................... 1

SUMMARY OF ARGUMENT .................................... 2

ARGUMENT .............................................................. 5

I. The Plain Language of the PDA ContainsTwo Distinct ProvisionsEach of WhichMust Be Given Meaning. ...................................... 5

A. Congress Adopted the PDA to Overridethe Supreme Courts Misreading of Title

VII in General Electric Co. v. Gilbert. ............ 6

B. The Plain Language of the PDA ReflectsCongresss Intent to Reject the Resultand Reasoning in Gilbert . ............................... 7

1. Congresss first manifest purpose in

passing the PDA was to confirm thatpregnancy and related conditionswere included within the termsbecause of sex and on the basis ofsex. ............................................................. 9

2. Congresss second manifest purposein passing the PDA was to establishthe obligation of employers to treatpregnant workers like otherpersons similar in their ability orinability to work. ..................................... 10


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ii3. The placement of the entirety of the

PDA within a section titledDefinitions does not minimize oralter the import of the plainlanguage of the second clause. ................. 12

C. The Fourth Circuits Decision Rewrotethe Standard Mandated by the PDA andRendered the Second Clause

Superfluous, in Violation of This CourtsPrecedent and the Canons of StatutoryConstruction. ................................................. 16

1. The Fourth Circuit improperlymodified the directive of the PDAthat employers treat pregnantworkers the same as other personssimilar in their ability or inability towork. ......................................................... 16

2. The Fourth Circuits interpretation,which reconciled the two clauses bylimiting the protections of the PDAto those established in the firstclause only, renders the secondclause superfluous. ................................... 19

II. The Legislative History of the PDAConfirms That the Decision Below WasErroneous. ........................................................... 22


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iii A. The Legislative History Shows the PDA

Was Intended to Override the SupremeCourts Misreading of Title VII inGilbert . ........................................................... 23

B. The Legislative History Demonstratesthat Congress Expressly Intended toEnact a Standard that Required anEmployer To Treat Pregnant Women

The Same as Other Workers Similar inTheir Ability or Inability to Work. ................ 24

C. The Decision Below Is in Contrapositionto Congressional Intent and Reverts to

Arguments Congress Rejected WhenEnacting the Legislation. .............................. 27

III.The Protection Afforded by the PDAsRequirement that Pregnant WorkersBe Judged Solely on Their Ability or

Inability to Work Remains NecessaryToday. .................................................................. 31

IV. The Proposed Pregnant Workers Fairness Act Would Reaffirm the PDAs Requirementthat Pregnant Workers Receive EqualTreatment. ........................................................... 37

CONCLUSION ......................................................... 40


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iv

TABLE OF AUTHORITIES

CASES

Adeyeye v. Heartland Sweetners, LLC , 721F.3d 444 (7th Cir. 2013).................................... 14

Ansonia Board of Education v. Philbrook ,479 U.S. 60 (1986) ............................................. 14

Astoria Federal Savings & Loan Assn v.Solimino , 501 U.S. 104 (1991) .......................... 21

AT&T Corp. v. Hulteen , 556 U.S. 701 (2009) ...... 15

Baker v. Home Depot, 445 F.3d 541 (2d Cir.2006) .................................................................. 14

Barnhart v. Sigmon Coal Co ., 534 U.S. 438(2002) ................................................................. 18

Brotherhood of Railroad Trainmen v.

Baltimore & Ohio Railroad Co. , 331 U.S.519 (1947) ..................................................... 12,13

California Federal Savings & Loan Assn v.Guerra , 479 U.S. 272 (1987) ................... 7, 23, 25

Connecticut National Bank v. Germain , 503U.S. 249 (1992) .................................................... 7

Corley v. United States , 556 U.S. 303(2009) ........................................................... 21, 22

Dodd v. United States , 545 U.S. 353

(2005) ........................................................... 17, 18EEOC v. Firestone Fibers & Textiles Co.,

515 F.3d 307 (4th Cir. 2008) ............................. 14


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viTepper v. Potter, 505 F.3d 508 (6th Cir.

2007) .................................................................. 14

Trans World Airlines, Inc. v. Hardison , 432U.S. 63 (1977) .................................................... 13

Walsh v. National Computer System, Inc .,332 F.3d 1150 (8th Cir. 2003) ........................... 36

Webb v. City of Philadelphia, 562 F.3d 256(3d Cir. 2009) .................................................... 14

Wirtz v. Local 153, Glass Bottle Blowers Assn , 389 U.S. 463 (1968) ................................ 22

STATUTES AND REGULATIONS

42 U.S.C. 2000e(k) ...................................... passim

42 U.S.C. 2000e(j) ............................................... 13

ADA Amendments Act of 2008, Pub. L. No.110-325, 122 Stat. 3553, 42 U.S.C. 12101, et seq., .................................................... 21

2014 Ill. Legis. Serv. Pub. Act 98-1050(West) (effective Jan. 1, 2015) .......................... 18

Cal. Govt Code 12945 (West 2012) ................... 18

Haw. Code R. 12-46-107 (1990) ......................... 18

Md. Code Ann., State Govt 20609 (West2013) .................................................................. 18

Minn. Stat. Ann. 181.9414 (West 2014) ............ 18

N.J. Stat. Ann. 10:5-12(s) (West 2014) ........ 18, 19

S.B. 212, 147th Gen. Assem., Reg. Sess.(Del. 2014) ......................................................... 18

W. Va. Code Ann. 5-11B-2 (West 2014) ............. 19


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vii29 C.F.R. 1604, App. Q&A 5 .............................. 22

29 C.F.R. 1630.2(h) ............................................. 21

29 C.F.R. 1630.2(j)(1)(ix) .................................... 21

LEGISLATIVE MATERIALS

158 Cong. Rec. H2459 (daily ed. May 9,2012) ............................................................ 37, 38

Discrimination on the Basis of Pregnancy,

1977: Hearings on S. 995 Before theSubcomm. on Labor of the S. Comm. onHuman Res. , 95th Cong. (1977) ................... 9, 23

H.R. Rep. No. 95-948 (1978), reprintedat 1978 U.S.C.C.A.N. 4749 ....................... passim

Legislation to Prohibit Sex Discriminationon the Basis of Pregnancy: Hearing onH.R. 5055 and H.R. 6075 Before theSubcomm. on Empt Opportunities of theH. Comm. on Educ. and Labor , 95thCong. (1977) .................................... 23, 24, 28, 29

Legislation to Prohibit Sex Discriminationon the Basis of Pregnancy Part II:Hearing on H.R. 5055 and H.R. 6075Before the Subcomm. on EmptOpportunities of the H. Comm. on Educ.and Labor , 95th Cong. (1977) ..................... 28, 29

Pregnant Workers Fairness Act, S.942,113th Cong. (2013) ............................................ 37

Pregnant Workers Fairness Act, H.1975,113th Cong. (2013) ............................................ 37


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viiiS. Comm. on Labor and Human Resources,

96th Cong., Legislative History of thePregnancy Discrimination Act of 1978(Comm. Print 1979) .................................. passim

S. Rep. No. 95-331 (1977) .............................. passim

OTHER AUTHORITIES

Stephen Benard et al., Cognitive Bias andthe Motherhood Penalty , 59 Hastings

L.J. 1359 (2008) ............................................... 35 Amy J.C. Cuddy et al, When Professionals

Become Mothers, Warmth Doesnt Cutthe Ice , 60 J. Soc. Issues 701 (2004) ................. 36

EEOC, Enforcement Guidance: PregnancyDiscrimination and Related Issues (July14, 2014), available at http://www.eeoc.gov/laws/guidance/pregnancy_guidance.cfm ............................................ 22

Madeline E. Heilman & Tyler G. Okimoto,Motherhood: A Potential Source of Biasin Employment Decisions , 93 J. AppliedPsychol. 189 (2008) ..................................... 35, 36

Letter from Sen. Robert P. Casey, Jr. andSen. Jeanne Shaheen to SenateColleagues (May 8, 2013) .................................. 38

Letter from Hon. Jerrold Nadler to House ofRepresentatives Colleagues (May 2,2013) .................................................................. 37


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2SUMMARY OF ARGUMENT

Congress passed the PregnancyDiscrimination Act (PDA) in direct response to thisCourts decision in General Electric Co. v. Gilbert ,429 U.S. 125 (1976), superseded by statute NewportNews Shipbuilding & Dry Dock Co. v. EEOC , 462U.S. 669 (1983), which held that Title VII, as thendrafted, did not prohibit an employer from excluding

women with disabilities arising from pregnancy andchildbirth from a disability plan covering sicknessand injury, unless the plaintiff could show thedistinction based on pregnancy was a pretext todiscriminate on the basis of sex. Because Congressbelieved that this interpretation of Title VII waserroneous and contrary to the intention of thedrafters, it enacted the PDA, expressly providingthat the terms because of sex or on the basis ofsex found in Title VII include because of or on thebasis of pregnancy, childbirth, and related medical

conditions. 42 U.S.C. 2000e(k). In doing so,Congress ensured that distinctions based onpregnancy and related conditions would beconsidered discrimination on the basis of sex underTitle VII.

However, the PDA did more than this. Inpassing the PDA, Congress also developed andenacted the controlling standard employers must usein determining whether a pregnant worker is to beprovided a benefit afforded another worker.Specifically, employers are only to consider whetherthe pregnant workers ability or inability to work,is similar to that of the worker receiving the benefit.


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3Id. If so, the pregnant worker must receive the sametreat[ment]. Id.

In the decision below, the Fourth Circuitignored this explicit statutory mandate by holdingthat Peggy Young, a UPS driver who requested lightduty because of limitations arising from herpregnancy, was not entitled to that accommodation,despite the fact that workers who had other

disabilities, injuries, and physical conditions thatsimilarly affected their ability to work received lightduty. The Court justified its decision by placingdispositive emphasis on the source or legalcategorization of an employees inability to work inassessing entitlement to benefits (e.g., whether theinability resulted from an on-the-job injury, adisability under the ADA, or the loss of a commercialdrivers license). To reach this result, the FourthCircuit ignored the unambiguous mandate of thePDA requiring employers to consider only the ability

or inability to work in determining a pregnantworkers entitlement to benefits, and consideredadditional factors not permitted by the PDA. In sodoing, it judicially erased the protection Congressintended to provide by enacting the ability orinability to work standard. Once employers arepermitted to narrow the class of potentialcomparators by considering the source or legalcategorization of the inability to work, they will beable to justify denying pregnant workers benefitsavailable to others.

The legislative history of the PDA clearlyreflects Congresss intention to protect pregnant


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4workers by defining the sole factor employers mayuse to distinguish between pregnant workers andothers in deciding whether to extend benefits inemployment: the ability or inability to work.

Congress not only overturned the holding ofGilbert, it rejected the attitude toward pregnantwomen reflected in the decision. It recognized thathostility toward pregnant workers was a primary

driver of sex discrimination in the workplace, andthat, in order to ensure that pregnant women wereno longer treated as second-class citizens on the job,employers must treat them as well as they treatedother workers whose ability to do their job wasaffected by injury, disability, or disease. Theconcerns of the PDAs drafters regarding thediscrimination experienced by pregnant workers andmothers based on stereotypes about theincompatibility of motherhood and workunfortunately remain compelling today.

As drafters and co-sponsors of the PregnantWorkers Fairness Act (PWFA), which seeks toreaffirm the PDAs strong protections against thisdiscrimination, amici believe the PDA must beinterpreted as it was drafted, and as it was intendedto be applied. Further, amici submit this brief tomake clear that nothing in the PWFA or the fact ithas been proposed implies that the Fourth Circuitdecision is anything other than an inappropriate

judicial rewriting of unambiguous statutorylanguage. Amici urge the Court to respect thelanguage adopted by Congress in the PDA andoverturn the Fourth Circuits decision below.


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5ARGUMENT

I. The Plain Language of the PDA Contains TwoDistinct ProvisionsEach of Which Must BeGiven Meaning.

In affirming the grant of summary judgmentto UPS, the Fourth Circuit offered no alternativeinterpretation of the meaning of the dispositivestatutory language requiring employers to treatpregnant workers the same as other employeessimilar in their ability or inability to work. Indeed,the Court expressly acknowledged that [s]tandingalone, this language is unambiguous. Pet. App.20a. Yet, the Fourth Circuit concluded that based onits placement . . . in the definitional section of Title

VII, and grounded within the confines of sexdiscrimination under sec. 703, this provision did notmeaningfully alter the analysis to be applied inpregnancy discrimination claims. Id . at 20a-21a.

Based on these considerations rather than theconcededly unambiguous statutory language itself,the Court mistakenly concluded that employers candeny pregnant workers employment-related benefitsavailable to other employees similar in their abilityto work. Id. As such, the decision ignores basictenets of statutory construction, constitutes legalerror, and must be set aside.


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6 A. Congress Adopted the PDA to Override

the Supreme Courts Misreading of Title VII in General Electric Co. v. Gilbert.

In 1964, Congress passed the Civil Rights Act,which prohibited, among other things, discriminationin employment because of or on the basis of anemployees sex. In Gilbert , this Court held that Title

VIIs prohibition of discrimination on the basis of sex

did not prevent an employer from excluding womenwith disabilities arising out of pregnancy orchildbirth from access to benefits available toworkers with disabilities arising out of sickness oraccidents, absent a showing that distinctionsinvolving pregnancy are mere pretexts designed toeffect an invidious discrimination against themembers of one sex or the other. 429 U.S. at 135(quoting Geduldig v. Aiello , 417 U.S. 484, 496-97(1974)); id. at 145-46.

This decision, permitting employers todiscriminate in the benefits or terms of employmentafforded pregnant workers, was premised on theCourts belief that such discrimination did not violateTitle VII because it was based on the unprotectedcondition of pregnancy, rather than on the protectedcategory of sex. In so holding, this Court endorsedthe view that workers disabled by pregnancy couldbe treated differentlyindeed, worsethan workersdisabled by sickness or injury, unless the pregnantworker could demonstrate that the difference intreatment was motivated by a general animustoward women.


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7This Courts reasoning was premised on its

perception that pregnancy was not comparable in allother respects to covered diseases or disabilitiesbecause it is not a disease at all, and is often avoluntarily undertaken and desired condition. Id. at136. The Courts explicit conclusion that pregnancyis not directly comparable to other conditions, andthe attitude animating that conclusion, led Congressto adopt the ability or inability to work standard

that is set out in the second clause of the PDA. Thisstandard determines what constitutes discriminationon the basis of pregnancy. See, e.g. , Cal. Fed. Sav. &Loan Assn v. Guerra , 479 U.S. 272, 285 (1987)([T]he second clause was intended to overrule theholding in Gilbert and to illustrate howdiscrimination against pregnancy is to beremedied.).

B. The Plain Language of the PDA ReflectsCongresss Intent to Reject the Result

and Reasoning in Gilbert .Under long established precedent, the first

step in determining the meaning of relevantstatutory language is to carefully review the plainlanguage of the statute itself. [I]n interpreting astatute a court should always turn first to one,cardinal canon before all others . . . [:] a legislaturesays in a statute what it means and means in astatute what it says there. Conn. Natl Bank v.Germain , 503 U.S. 249, 253-54 (1992) (citationsomitted). This doctrine is grounded in the concept ofcomity among the three coequal branches ofgovernment: [w]here the language of a statute is


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91. Congresss first manifest purpose

in passing the PDA was toconfirm that pregnancy andrelated conditions were includedwithin the terms because of sexand on the basis of sex.

The first clause of the PDA clarifies that Title VIIs prohibitions on discrimination because of sex

or on the basis of sex apply to discriminationbecause of or on the basis of pregnancy,childbirth, and related medical conditions.

Accordingly, women are entitled to protection frompregnancy-based classifications in terms andconditions of employment, in hiring and dischargingdecisions, and in other employment decisions thatadversely affect an employees status. Intl Union,UAW v. Johnson Controls, Inc. , 499 U.S. 187, 197(1991) (citing Section 703(a) of the Civil Rights Act of1964, 78 Stat. 255, as amended, 42 U.S.C. 2000e-

2(a)). The first clause directly overruled the holdingin Gilbert that discrimination on the basis ofpregnancy is not discrimination on the basis of sexin part because pregnancy is a condition affectingsome, but not all, women. 429 U.S. at 135, 145-46.This clause of the PDA affirmed prior EqualEmployment Opportunity Commission (EEOC)guidance stating that sex discrimination includedpregnancy discrimination. See Discrimination on theBasis of Pregnancy, 1977: Hearings on S. 995 Beforethe Subcomm. on Labor of the S. Comm. on HumanRes. , 95th Cong. 26 (1977) (statement of Sen.Kennedy) (The Courts opinion [in Gilbert ] . . .


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10disregarded the 1972 Equal EmploymentOpportunity Commission guidelines that requiredpregnancy-related disabilities be treated the same asany other temporary disability in the allocation ofdisability and sick leave benefits.).

2. Congresss second manifestpurpose in passing the PDA wasto establish the obligation of

employers to treat pregnantworkers like other personssimilar in their ability orinability to work.

The second clause of the PDA expressly setsthe legal standard to be applied to ensure fairtreatment for pregnant women in the workplace.Employers are to treat pregnant workers, for allemployment purposes, as other persons . . . similarin their ability or inability to work. 5 42 U.S.C.

2000e(k). This unambiguous statutory languagerequires that when employers determine whether apregnant worker is entitled to a given benefit or typeof treatment, they are to consider only one factor:whether other persons in the workplace of similar

5 This requirement established the minimum benefits to whicha pregnant worker is entitled. Congress intended the PDA tobe a floor beneath which pregnancy disability benefits maynot drop-not a ceiling above which they may not rise. Guerra ,479 U.S. at 285 (quoting Cal. Fed. Sav. & Loan Assn v.Guerra , 758 F.2d 390, 396 (9th Cir. 1985), affd , 479 U.S. 272(1987)).


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13241, 256 (2004) (quoting Trainmen ); see also Penn.Dept of Corr. v. Yeskey , 524 U.S. 206, 212 (1998)(quoting Trainmen ). Thus, the sections title,Definitions, cannot annul or modify the clearcongressional mandate unambiguously expressed inthe second clause of the PDA.

Indeed, this is not the only instance whereCongress placed a comprehensive treatment of a

substantive right within the Definitions section ofTitle VII. When Congress amended Title VII toexplicitly require employers to accommodatereligious exercise, it placed the entire provisionwithin the very same Definitions section of Title VII,at 42 U.S.C. 2000e(j). This Court has recognizedthat the religious accommodation requirementimposes substantive obligations, which supplementthe nondiscrimination rules applicable to otherclasses protected under Title VII: it mandated thatan employer, short of undue hardship, [must] make

reasonable accommodations to the religious needs ofits employees. Trans World Airlines, Inc. v.Hardison , 432 U.S. 63, 66 (1977) (interpreting theEEOC regulation and recognizing that Congress hadsince amended the statute to include this language).The religious accommodation provision thus addedsubstantive content, not applicable to the rest ofTitle VII, uniquely focused on the rights of religiouspractitioners. Similarly, the PDAs second clausecontains substantive content, not applicable to therest of Title VII, uniquely focused on the rights ofpregnant workers.


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16C. The Fourth Circuits Decision Rewrote

the Standard Mandated by the PDA andRendered the Second ClauseSuperfluous, in Violation of This CourtsPrecedent and the Canons of StatutoryConstruction.

Despite the plain command of the secondclause of the PDA, the Fourth Circuit adopted a

reading of the statute that would permit employersto deny pregnant workers workplace benefits thatare offered to other workers who are similar in theirability or inability to work. Specifically, the FourthCircuit permitted UPS to treat Ms. Young lessfavorably than workers who were receiving lightduty based on a similar ability or inability to work,so long as the comparators could be distinguishedfrom Ms. Young on some pregnancy blind basis notshown to be motivated by animus against pregnantwomen. Pet. App. 27a-28a. However, in doing so,

the Fourth Circuit judicially re-drafted the PDA toadd limitations contrary to the language andunderlying purpose of the statutes text. See id. 27a-29a.

1. The Fourth Circuit improperlymodified the directive of the PDAthat employers treat pregnantworkers the same as otherpersons similar in their ability orinability to work.

The PDAs second clause embodies a cleardirective: women affected by pregnancy, childbirth,


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17or related medical conditions shall be treated thesame for all employment-related purposes . . . asother persons not so affected but similar in theirability or inability to work. 42 U.S.C. 2000e(k).Thus, the ability or inability to work is the solebasis of comparison permitted by Congress. Thereare no exceptions or limitations to this mandate.Employers are not free to make determinationsbased on other unlisted factors. If an employer

provides a non-pregnant worker a particular benefitor term of employment based on the non-pregnantworkers ability or inability to work, the PDArequires that the pregnant worker with a similarability or inability to work shall be treated thesame without distinctions based on the nature of theworkers conditions. Id .; see also Johnson Controls ,499 U.S. at 204 (Unless pregnant employees differfrom others in their ability or inability to work, theymust be treated the same as other employees for allemployment-related purposes. (quoting 42 U.S.C. 2000e(k)).

The interpretation adopted by the FourthCircuit, however, perverted the meaning of thesecond clause of the PDA to focus not on the abilityto work, but on the cause or legal categorization ofany limitation in ability to work. Pet. App. 27a. Byallowing an employer to provide or withhold benefitsbased on factors other than the ability to work, theFourth Circuit improperly inserted new languageinto the statute. Id. at 27a-28a.

A courts ability to modify clear statutorylanguage is strictly circumscribed. Courts are not


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18free to rewrite the statute that Congress hasenacted. Dodd v. United States , 545 U.S. 353, 359(2005); see also Barnhart v. Sigmon Coal Co ., 534U.S. 438, 462 (2002) (When the words of a statuteare unambiguous. . . [w]e will not alter the text.).The sole exceptions to this canon of statutoryconstruction requiring adherence to a statutes plainlanguage occur when application of statutorylanguage would result in patently absurd results or

is not parallel to obvious Congressional intent. SeePublic Citizen , 491 U.S. at 454 (Where the literalreading of a statutory term would compel an oddresult, . . . we must search for other evidence ofcongressional intent to lend the term its properscope. (internal citation omitted)); Griffin v. OceanicContractors, Inc ., 458 U.S. 564, 571 (1982) (inexceptional cases, court will not permit a statutoryinterpretation demonstrably at odds with theintentions of its drafters . . .). The PDAs clearcommand that a pregnant worker be treated thesame as others similar in ability or inability towork is a logical and consistent response to theholding in Gilbert and a reaffirmation of the guidingprinciples of Title VII. 7 Indeed, the Fourth Circuit

7 Indeed, the suggestion that a standard that has the effect ofrequiring accommodations for pregnant workers would beabsurd flies in the face of the reality that many states haveadopted explicit legal requirements of reasonableaccommodations for those pregnant workers who need them.See Cal. Govt Code 12945 (West 2012); S.B. 212, 147th Gen.

Assem., Reg. Sess. (Del. 2014); Haw. Code R. 12-46-107(1990); 2014 Ill. Legis. Serv. Pub. Act 98-1050 (West) (effectiveJan. 1, 2015); Md. Code Ann., State Govt 20609 (West2013); Minn. Stat. Ann. 181.9414 (West 2014); N.J. Stat.


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19never suggested that its rewriting of the statute wasbased on its conclusion that, without such a judicialamendment, absurd results would ensue. Since theFourth Circuits decision breached the foundationalcanon requiring fidelity to the unambiguouslanguage of a non-absurd statute, the result belowshould be reversed.

2. The Fourth Circuits

interpretation, which reconciledthe two clauses by limiting theprotections of the PDA to thoseestablished in the first clauseonly, renders the second clausesuperfluous.

In perhaps the most telling language of itsopinion, the Fourth Circuit conceded that,[s]tanding alone, the second clauses plain languageis unambiguous. Pet. App. 20a. That candid

admission should end the inquiry. New LampChimney Co. v. Ansonia Brass & Copper Co ., 91 U.S.656, 662-63 (1876) ([W]here the language of the actis unambiguous and explicit, courts are bound toseek for the intention of the legislature in the wordsof the act itself, and they are not at liberty tosuppose that the legislature intended any thingdifferent from what their language imports.).Instead, the court below attempted to reconcile thefirst and second clause. Pet. App. 20a-21a. Yet,there is no inconsistency between the two clauses

Ann. 10:5-12(s) (West 2014); W. Va. Code Ann. 5-11B-2(West 2014).


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21workers rights (contingent as they are upontreatment afforded their comparators) do as well. 8

By introducing factors other than the abilityor inability to work, the Fourth Circuit not onlyengaged in impermissible judicial redrafting, but itrendered the protections of the second clausemeaningless. Under its interpretation, the onlyprotection the PDA establishes for pregnant workers

is that provided by the inclusion of pregnancywithin the protected class sex, a task accomplishedby the straightforward language of the first clause.In assigning no additional meaning to the secondclause, the Fourth Circuits ruling violates thefoundational canon of statutory interpretation tointerpret statutory language to avoid surplusage.See Astoria Fed. Sav. & Loan Assn v. Solimino , 501U.S. 104, 112 (1991); Corley v. United States, 556

8 Today, the effect of the ADA Amendments Act of 2008(ADAAA), Pub. L. No. 110-325, 122 Stat. 3553, 42 U.S.C. 12101, et seq., further highlights the problems in thisanalysis. The ADAAA, passed after the facts in this case,requires employers to make reasonable accommodations forworkers with temporary disabilities, including impairmentsthat result in temporary lifting restrictions, like Ms. Youngs.See 29 C.F.R. 1630.2(j)(1)(ix). Pregnancy itself, however, isnot an impairment. 29 C.F.R. 1630.2(h). Under theFourth Circuits reasoning, an employer today couldpotentially justify denying accommodations to pregnantemployees with multi-month lifting restrictions even when theemployer consistently provided them to all non-pregnantemployees with identical restrictions, by explaining non-pregnant employees were accommodated for the pregnancy-neutral reason of complying with the ADAAA. This wouldleave the second clause of the PDA a hollow promise.


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22U.S. 303, 314 (2009). Indeed, this Court expresslyrecognized the risk and error of doing so with respectto this specific language when it cautioned againstread[ing] the second clause out of the [PregnancyDiscrimination] Act. Johnson Controls , 499 U.S. at205. In violation of this precedent, the FourthCircuit adopted an interpretation that effectivelyeviscerates the protections in the second clause. 9

II.

The Legislative History of the PDA ConfirmsThat the Decision Below Was Erroneous.

While the plain language of the PDAunambiguously reflects Congresss intent, that intentis further confirmed by reference to the statuteslegislative history. [P]roper construction [of astatute] frequently requires consideration of [its]wording against the background of its legislativehistory and in light of the general objectivesCongress sought to achieve. Wirtz v. Local 153,

Glass Bottle Blowers Assn , 389 U.S. 463, 468(1968). The legislative history of the PDA makesclear that Congresss intent was to repudiate boththe result and the reasoning of Gilbert , 429 U.S. 125.Indeed, the key, animating central purpose inpassing the PDA was an intent to ensure that when

9 Moreover, just as this Court set aside EEOC guidance inGilbert , the Fourth Circuits decision also departs from theEEOCs interpretation of the PDA. See 29 C.F.R. 1604, App.Q&A 5; EEOC, Enforcement Guidance: PregnancyDiscrimination and Related Issues (July 14, 2014), availableat http://www.eeoc.gov/laws/guidance/pregnancy_guidance.cfm.


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23workers physical ability to work is limited bypregnancy, they are granted the same benefits andconditions of employment as those whose ability towork is limited by other disabling conditions. See , e.g., S. Comm. on Labor and Human Resources, 96thCong., Legislative History of the PregnancyDiscrimination Act of 1978, 62-63 (Comm. Print1979) (PDA Legislative History) (statement of Sen.Williams).

A. The Legislative History Shows the PDAWas Intended to Override the SupremeCourts Misreading of Title VII inGilbert .

As this Court recognized in Guerra , 479 U.S.at 285, the legislative history of the PDAdemonstrates that Congress intended to overruleGilbert . E.g. , S. Rep. No. 95-331, at 2-3 (1977)(describing our disagreement with the Gilbert

decision as a motivating purpose of Senate bill);H.R. Rep. No. 95-948, at 3 (1978), reprinted at 1978U.S.C.C.A.N. 4749, 4751 (expressing disagreementwith Gilbert decisions interpretation of Title VII asnecessitating the PDA); Hearings on S. 995 , supra ,31 (statement of Ethel Bent Walsh, Vice Chairman)(This legislation [the PDA] has, of course becomenecessary only because of the Supreme Courtsdecision last term in General Electric v. Gilbert , . . .[which] left a gaping hole in the protection affordedby Title VII to women.); Legislation to Prohibit SexDiscrimination on the Basis of Pregnancy: Hearingon H.R. 5055 and H.R. 6075 Before the Subcomm. onEmpt Opportunities of the H. Comm. on Educ. and


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24Labor , 95th Cong. 126 (1977) (statement of Drew S.Days, III, Assistant Attorney General, Civil RightsDivision).

B. The Legislative History Demonstratesthat Congress Expressly Intended toEnact a Standard that Required anEmployer To Treat Pregnant WomenThe Same as Other Workers Similar in

Their Ability or Inability to Work.The legislative history of the PDA also

confirms that the second clause has a separate andunique purpose: it defines the appropriate standardfor eliminating [pregnancy] discrimination, byproviding that pregnant workers who are able towork shall be treated the same as other ableworkers, and that pregnant workers who are unableto work shall be treated the same as other disabledworkers. Hearing on H.R. 5055 and H.R. 6075,

supra , 32-33 (testimony of Susan Deller Ross, onbehalf of the Campaign to End Discrimination Against Pregnant Workers). Congress declared that[p]regnant women who are able to work must bepermitted to work on the same conditions as otheremployees; and when they are not able to work formedical reasons, they must be accorded the samerights, leave privileges and other benefits, as otherworkers who are disabled from working. S. Rep. 95-331, at 4. Proponents sought to pass a bill thatwould simply require that pregnant women betreated the same as other employees on the basis oftheir ability or inability to work, H.R. Rep. No. 95-948, at 4, reprinted at 1978 U.S.C.C.A.N. at 4752.


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25The second clause was thus intended to specificallydefine the standards which require that pregnantworkers be treated the same as other employees onthe basis of their ability or inability to work, PDALegislative History 206 (statement of Rep. Hawkins).Indeed, this Court has previously recognizedCongresss intent, stating we believe that the secondclause was intended to overrule the holding inGilbert and to illustrate how discrimination against

pregnancy is to be remedied. Guerra , 479 U.S. at285.

Legislative history further clarifies that aprimary motivating purpose of the PDA was toensure that medical needs arising out of pregnancyare treated the same by employers as medical needsarising out of disabilities and that employers couldno longer relegate pregnancy-related limitations to aseparate class of disabilities incompatible with work.

A committee report explained that the bill rejects

the view that employers may treat pregnancy and itsincidents as sui generis , without regard to itsfunctional comparability to other conditions. S. Rep.No. 95-331, at 4; see also PDA Legislative History115 (statement of Sen. Bayh) (The whole purpose ofthis bill is to say that if a corporation, a business isto provide disability [benefits] that they cannotdiscriminate against women because of the uniquecharacter of disability that might confront them[.]).To ensure that determination of the availability ofbenefits did not focus on the unique condition ofpregnancy, the bill required that pregnant workersbe treated like other workers with similar ability or


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26inability to work. See PDA Legislative History 67(statement of Sen. Javits) (The bill requires equaltreatment when disability due to pregnancy iscompared to other disabling conditions. . . [T]he billadopts as its standard equality of treatment andthereby permits the personnel and fringe benefitprograms already in existence for other similarconditions to be the measure of an employers dutytoward pregnant employees.); id. at 65 (statement of

Sen. Williams) (The purpose of the bill is to insure[sic] that women who are disabled by conditionsrelated to pregnancy are compensated fairly andgiven a fair amount of assistance with their medicalbills, in relation to their fellow employees who aredisabled by other medical conditions.).

Congress considered how to ensure thatpregnant workers be treated the same as otherworkers. Indeed, the House Committee Report madeclear that [t]he bill would simply require that

pregnant women be treated the same as otheremployees on the basis of their ability or inability towork. The same treatment may include employerpractices of transferring workers to lighterassignments. See H.R. Rep. 95-948, at 4-5,reprinted at 1978 U.S.C.C.A.N. at 4752-53. TheSenate Committee Report stated explicitly that thestatute was intended to ensure that pregnantworkers too must be accorded the same rights, leaveprivileges and other benefits, as workers who aredisabled from working. S. Rep. No. 95-331, at 4; seealso PDA Legislative History 130-31 (statement ofSen. Cranston) (Pregnant women who are able to


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27work must be permitted to work on the sameconditions as other employeesand when they arenot able to work for medical reasons they must beaccorded the same rights, leave privileges, and otherbenefits as other employees who are medicallyunable to work.). As this history makes clear,Congress fully understood that the PDA wouldrequire an employer to provide pregnant workers thesame type of accommodations that it provides to

other employees.C. The Decision Below Is in Contraposition

to Congressional Intent and Reverts to Arguments Congress Rejected WhenEnacting the Legislation.

Despite the clear directives from Congress andthis Court that the standard for measuringcompliance with the PDA is comparing the treatmentof pregnant workers with treatment of those who are

similar in their ability to work, the Fourth Circuitsdecision below reverts to the logic of Gilbert infinding that Title VII, even as amended by the PDA,only protects pregnant workers from policies that bytheir terms single out pregnancy or can be shown tobe motivated by animus toward pregnant women.Compare Pet. App. 28a-29a (rejecting Ms. Youngsclaims because a lack of charity does not amount todiscriminatory animus directed at a protected classof employees) with Gilbert , 429 U.S. at 136, quoting Geduldig , 417 U.S. at 496-97 n.20 (There is no moreshowing in this case than there was in Geduldig thatthe exclusion of pregnancy benefits is a merepretex[t] designed to effect an invidious


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28discrimination against the members of one sex or theother.). Indeed, under the Fourth Circuitsanalysis, the very disability insurance policychallenged in Gilbert would likely be permissibleunder the PDA, if by its terms it covered disabilitiesarising out of accidents or sickness and did notexpressly note that pregnancy was thereby excluded;this would be a pregnancy-blind rule, absent ashowing of animus motivating the exclusion. See

Pet. App. 18a. In light of the express congressionalrepudiation of the reasoning and result in Gilbert , alegal analysis that would permit this result cannotbe correct.

The Fourth Circuit expressed a concern thatinterpreting the PDA to provide pregnant workersthe right to receive benefits whenever an employerprovides benefits to another category of workersbased on a similar inability to work would amount topreferential treatment for pregnant workers. Pet.

App. 20a-21a. But similar arguments wereconsideredand rejectedduring the debates overthe PDA. Opponents of the PDA argued that [t]hepassage of this amendment would mean a permanentbenefit imbalance in favor of women of child-bearingage, Hearing on H.R. 5055 and H.R. 6075, supra , at260 (statement of National Retail Merchants Assn),and that the PDA is an edict that a benefit will begranted to one class of women, those who arepregnant and in effect discriminates against non-pregnant females and males, Legislation to ProhibitSex Discrimination on the Basis of Pregnancy PartII: Hearing on H.R. 5055 and H.R. 6075 Before the


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29Subcomm. on Empt Opportunities of the H. Comm.on Educ. and Labor , 95th Cong. 24 (1977) (testimonyof the Electronic Industries Association, presented byFred T. Thompson, Chairman of the Labor RelationsCommittee of EIAs Industrial Relations Council).See also id. at 38 (statement of Fred T. Thompson,Chairman of the Labor Relations Committee of EIAsIndustrial Relations Council).

In response, proponents of the PDA explainedthat guaranteeing workers incapacitated bypregnancy the same treatment provided to otherworkers on the basis of incapacity does notimproperly advantage pregnant workers. This billmakes it clear that an employer must provide healthand medical benefits on an equal basis, if he does soat all. It does not, however, require that an employerdo anything more for his pregnant employees thanhe does for any other employees. PDA LegislativeHistory 133 (statement of Rep. Mathias); see also

Hearing on H.R. 5055 and H.R. 6075, supra , 171(statement of Drew S. Days, III, Assistant AttorneyGeneral, Civil Rights Division) (The proposedlegislation does not purport to elevate pregnancyabove other employment disabilities, and requireemployers to assume the costs of pregnancy whenthey would not do so with regard to other physicaldisabilities.). Although the PDA does not create anentitlement to pregnancy leave or other benefitswhere no worker receives leave or benefits based oninability to work, it does require that if a companyprovides a benefit to some groups of workers basedon incapacity, that benefit must be provided to


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30pregnant workers similar to those workers in abilityto work.

Respondent has argued that [i]t is clear thatCongress did not require employers to equatepregnancy with on-the-job conditions and that thelegislative history is rife with examples specificallyallowing employers to treat pregnant employees thesame as employees injured off the job. Oppn Cert.

at 14. But Respondent misreads the legislativehistory. The legislative history of the PDA focusesclosely on the type of disability insurance planapproved by the Court in Gilbert in explaining whythe PDA would require an alternative result . Thatplan provided nonoccupational sickness andaccident benefits to employees, other than pregnantemployees. 429 U.S. at 128. The references in thelegislative history to the PDAs requirement of equaltreatment of pregnant employees and otheremployees with nonoccupational disabilities are a

specific reaction to the Courts approval of that planand similar plans, not a limitation on the PDAsreach. See Newport News Shipbuilding , 462 U.S. at679 (noting that focus of congressional discussion attime of PDAs enactment does not create a negativeinference limiting the scope of the [A]ct to thespecific problem that motivated its enactment.).References to nonoccupational injuries duringCongresss consideration of the PDA cannot be readto limit the plain language of the statute. 10

10 Of course, in this case, UPS accommodated nonoccupationalconditions as well as occupational conditions.


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31III. The Protection Afforded by the PDAs

Requirement that Pregnant Workers BeJudged Solely on Their Ability or Inability toWork Remains Necessary Today.

Pregnant workers in the mid-1970s faced amyriad of stereotypes and assumptions about theirability to work and their commitment to work thatoften resulted in discriminatory treatment, including

attempts to push them out of the workforce entirely.Congress passed the PDA because it understood thatprotections for pregnant workers were necessary,given a long history of employers forcing women offthe job regardless of their actual ability to work andof treating pregnancy differently from other medicalconditions. As the Senate Committee Reportobserved:

Even more important than ourdisagreement with the Gilbert

decision is the fact that the decisionthreatens to undermine the centralpurpose of the sex discriminationprohibitions of title VII. As thetestimony received by this committeedemonstrates, the assumption thatwomen will become pregnant andleave the labor market is at the core ofthe sex stereotyping resulting inunfavorable disparate treatment ofwomen in the workplace.

S. Rep. 95-331, at 3.


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32Similarly, the House Report emphasized:

Women are still subject to thestereotype that all women aremarginal workers. Until a womanpasses the child-bearing age, she isviewed by employers as potentiallypregnant. Therefore the eliminationof discrimination based on pregnancy

in these employment practices inaddition to disability and medicalbenefits will go a long way towardproviding equal employmentopportunities for women, the goal ofTitle VII of the Civil Rights Act of1964.

H.R. Rep. 95-948, at 6-7, reprinted at 1978U.S.C.C.A.N. at 4754-55; see also, e.g. , PDALegislative History 181-82 (statement of Rep.

LaFalce) (Employers who believe pregnant womenare unable to continue working or do not desire towork are imposing stereotypical notions on theiremployees [that] are archaic and undocumented byavailable statistics. The Supreme Courts ruling inGilbert has served to reinforce the outdatedargument that women depend upon men, and nottheir jobs, for support.); id. at 61 (statement of Sen.Williams) ([M]ost policies and practices ofdiscrimination against women in the workforceresult from attitudes about pregnancy and the role ofwomen who become pregnant which are inconsistentwith the full participation of women in our economicsystem. Because of their capacity to become


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33pregnant, women have been viewed as marginalworkers not deserving the full benefits ofcompensation and advancement granted to otherworkers.); id. at 129 (statement of Sen. Cranston)(the program at issue in Gilbert demonstrates anexample of the kind of sex stereotyping which hascontinually resulted in women being treated assecond-class members of the work force).

The legislative history also demonstrates thata specific purpose of the PDA was to ensure thatworkers who had medical needs arising out ofpregnancy would not be pushed onto unpaid leave, orout of work entirely, with potentially severe financialconsequences for women and their families. Inintroducing the bill, Senator Harrison Williamsstated:

I am afraid that lurking between thelines of the Gilbert opinion is the

outdated notion that women are onlysupplemental or temporary workers earning pin money or waiting toreturn home to raise children full-time . . . . If [the law] is not changed,countless women and their familieswill be forced to suffer unjust andsevere economic, social andpsychological consequences. Manywomen disabled by pregnancy andchildbirth will be forced to take leavewithout pay. The resulting loss ofincome will have a devastating effect


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34on the family unit. The loss of amothers salary will make it difficultfor families to provide their childrenwith proper nutrition and health care.

PDA Legislative History 3 (statement of Sen.Williams); see also, e.g., id. at 7 (statement of Sen.Brooke) ([T]he effect of the Gilbert decision on theseworking women and their families could be

devastating. Many women temporarily disabled bypregnancy will be forced to take leave without pay.In so doing, they must forfeit the income which holdstheir family together, which helps assure theirchildren adequate nutrition and health care, andwhich helps keep their family off welfare.); id. at 12(statement of Rep. Hawkins) (The Courts decision[in Gilbert ] will have a particularly severe impact onlow-income workers who may be forced to go on leavewithout pay for childbirth or pregnancy-relateddisabilities. This loss of income may have serious

repercussions for families dependent upon the wifesearnings.).

Many of the policies that push pregnantwomen out of work, and which the PDA was adoptedto prohibit, are rooted in negative assumptions andstereotypes about working mothers. Unfortunately,decades after passage of the PDA, mothers continueto face stereotypes in the workplace, whichcircumscribe their opportunities. As this Courtrecognized as recently as 2003 in NevadaDepartment of Human Resources v. Hibbs :


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35Stereotypes about womens domesticroles are reinforced by parallelstereotypes presuming a lack ofdomestic responsibilities for men.Because employers continued toregard the family as the womansdomain, they often denied men similaraccommodations or discouraged themfrom taking leave. These mutually

reinforcing stereotypes created a self-fulfilling cycle of discrimination thatforced women to continue to assumethe role of primary family caregiver,and fostered employers stereotypicalviews about womens commitment towork and their value as employees.

538 U.S. 721, 736 (2003).

Social science confirms that women who

become pregnant and who become mothers continueto struggle with the effects of false assumptions andstereotypes about the incompatibility of pregnancy ormotherhood with paid work. See, e.g. , StephenBenard et al., Cognitive Bias and the MotherhoodPenalty , 59 Hastings L.J. 1359, 1386 (2008)(Mothers (including expectant mothers) experiencediscrimination when they are being evaluated forhire and promotion, as well as on their jobperformance.). Indeed, recent research hasconfirmed that mothers are perceived as lesscompetent and are less likely to be considered forhigh-level managerial positions than other female ormale applicants. Madeline E. Heilman & Tyler G.


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36Okimoto, Motherhood: A Potential Source of Bias inEmployment Decisions , 93 J. Applied Psychol. 189,197 (2008); see also Amy J.C. Cuddy et al, WhenProfessionals Become Mothers, Warmth Doesnt Cutthe Ice , 60 J. Soc. Issues 701, 711 (2004) (Perhapsmost noteworthy, participants expressed less interestin hiring, promoting, and educating the workingmother compared to the childless woman.). Recent

jury awards confirm that employers have continued

to discriminate against pregnant workers andworking mothers on the basis of these stereotypes.See, e.g. , Lust v. Sealy, Inc ., 383 F.3d 580, 583 (7thCir. 2004) (affirming jury verdict where defendantsmanager admitted to failing to consider plaintiff for apromotion due to his assumptions that she would notwant to relocate with her children); Taylor v. BigelowMgmt., Inc ., 242 F. Appx 178, 180 (5th Cir. 2007)(upholding jury verdict finding plaintiff had beendemoted due to her pregnancy where her supervisorcommented on the non-suitability of women formanagement positions because they get pregnantand miss work); Walsh v. Natl Computer Sys., Inc .,332, F.3d 1150, 1160 (8th Cir. 2003) (affirming juryverdict in favor of plaintiff who was treateddifferently while pregnant and subjected todiscriminatory comments upon her return frommaternity leave).

Through its misreading of the PDA, theFourth Circuits decision undermines the lawsprotections against policies that push workers withlimitations arising out of pregnancy off of the job. Itthus threatens the protection the PDA offers against


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39PWFAs sponsors. 11 The PWFA was drafted toreaffirm the PDAs requirement of equality oftreatment using an alternative model, in order toensure women would no longer be harmed byerroneous decisions like those below. That is, thecentral motivating purpose of the PWFA is to ensurecompliance with the PDAs mandate that thosewhose ability to work is affected by pregnancy aretreated as well as those whose ability to work is

affected by disability. Amici , many of whom are co-sponsors of the PWFA, believe that reversal of theFourth Circuit decision is compelled by the PDA.

11 Moreover, a proposed bill on which Congress has taken noformal action does not change the plain language of apreviously enacted statute, nor does it amend that statuteslegislative history.


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40CONCLUSION

For the foregoing reasons, amici urge theCourt to grant the appeal of Peggy Young andreverse the judgment of the U.S. Court of Appeals forthe Fourth Circuit.

Dated: September 11, 2014

Respectfully submitted,

Emily MartinNATIONAL WOMENS LAW

CENTER11 Dupont Circle N.W.Suite 800Washington, DC 20036(202) 319-3049

Andrew H. BartCounsel of Record

Anne Cortina PerryJENNER & BLOCK LLP 919 Third AvenueNew York, NY 10022(212) 891-1600

[email protected] for Amici Curiae


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ADDENDUM


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1aAppendix A: Identity of Individual mici

Robert P. Casey, Jr.*Jeanne Shaheen*Tammy Baldwin*Mark Begich*Richard Blumenthal*Barbara Boxer*Sherrod Brown*

Benjamin L. Cardin*Christopher A. Coons*Richard J. Durbin*

Al Franken*Tom Harkin*Mazie K. Hirono*Tim Kaine*Patrick Leahy*Joe Manchin IIIEdward J. Markey*Jeff Merkley*Barbara A. Mikulski*Christopher S. Murphy*Patty Murray*Harry ReidBrian Schatz*Charles E. Schumer*

Nancy PelosiSteny H. HoyerJerrold Nadler*

Diana DeGette*Louise McIntosh Slaughter*John Conyers, Jr.*


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2aGeorge Miller*Elijah E. Cummings*Robert A. Brady*Karen Bass*

Ami Bera*Suzanne Bonamici*Corrine Brown*Julia Brownley*Lois Capps*

Tony Crdenas*Matt Cartwright*Kathy CastorDonna M. Christensen*Judy Chu*David N. Cicilline*Katherine Clark*

Yvette D. Clarke*Steve Cohen*Jim Cooper*Joseph Crowley*Susan A. Davis*Peter A. DeFazio*John K. Delaney*Rosa L. DeLauro*Suzan K. DelBene*Theodore E. Deutch*Donna F. Edwards*Keith Ellison*

Anna G. Eshoo*Elizabeth H. Esty*

Chaka Fattah*Bill Foster*Lois Frankel*


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4aEleanor Holmes Norton*Bill Pascrell, Jr.*Ed Perlmutter*Gary Peters*Scott H. Peters*Chellie Pingree*Mark Pocan*Jared Polis*Charles B. Rangel*

Lucille Roybal-Allard*Bobby L. Rush*John P. Sarbanes*Jan Schakowsky*

Adam B. Schiff* Allyson Y. Schwartz*Robert C. Bobby Scott*Jos E. Serrano*Carol Shea-Porter*Jackie Speier*Eric Swalwell*Mark Takano*Paul Tonko*Niki Tsongas*Chris Van Hollen*Nydia M. Velzquez*Henry A. Waxman*Debbie Wasserman Schultz*

Documents

SCOTUS Amicus Brief From Congress