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No, Employers Shouldn't Be Forced To Accommodate Pregnant Employees

I'm going to tell you why I think employers shouldn't be legally forced to 'accommodate' pregnant women, but we need to begin by running through a few important details.

First, the situation: This week, the Supreme Court is hearing a pregnancy discrimination case involving UPS and a former employee named Peggy Young. In 2002, Peggy became a driver for the company, delivering overnight packages from an airport shuttle to nearby homes and shops. Four years later, Peggy got pregnant through IVF and obtained a note from her doctor explaining that she cannot lift anything over 20 pounds. Unfortunately, although her particular route involved mostly light packages and letters in envelopes, the position still requires that all workers are able to carry items up to 70 pounds. This requirement is explicitly outlined for all new applicants, so it certainly came as no surprise to anyone.

Peggy, deciding that she didn't want to risk lifting the heavier parcels, asked to be reassigned to a desk job for the next several months. UPS responded that they couldn't create a light duty position for her, and offered to place her on medical leave. The advantage, of course, is that she'd be guaranteed a job when she returns, but the disadvantage is that she would lose her income and her health benefits for that period. Ultimately, she opted for leave, had the baby sometime later, and then returned and stayed at the job for another three years.

At some point, Peggy sued the company claiming that she'd been unfairly discriminated against. They should have found another position for her, she said. That is Peggy's right, according to Peggy. She said UPS has made accommodations for other drivers who couldn't perform physically intensive jobs -- but UPS insists that they've only done this for employees with disabilities covered under the ADA, or for employees injured on the job, or for employees deemed unable to drive. All of these are separate and apart from pregnancy, they argued, and so far the courts have agreed.

But now the Supremes are involved, and whatever happens, we can be certain that more laws, regulations, mandates, and various other burdens will soon be hung around the necks of private businesses, large and small alike. There are a lot of legal questions at play here -- including how the Pregnancy Discrimination Act factors into this, and whether pregnancy should be placed in the same category as a permanent disability or a workplace injury -- and I'm sure the lawyers will have fun sorting it all out. As far as I can tell, there are enough laws on the books that pretty much any further government intrusion into the private sector can be justified by reciting chapter 46, section 12, Line B of some godforsaken statute or federal decree.

So has the government at some point granted itself an authority that can now be used as a precedent to force private businesses to 'accommodate' pregnant employees? Sure, probably.

I'm not interested in that debate because it's completely rigged. The Nanny Staters and progressive agitators have the set the rules and defined the terms; it's impossible to win if we play on their field. Instead, I'd like to simplify the matter and talk about whether it's actually right and wise for the government to force employers to find something else for a woman to do if pregnancy precludes her from doing the thing they hired her to do. An interesting coalition of left wing feminists and right wing pro-lifers have come together to argue that private businesses should be legally prohibited from firing pregnant women or placing them on unpaid leave. Even those who normally thump the 'free market' drum have suddenly decided that an exception should be made here. Indeed, when a pregnant mom goes up against a big bad corporation, it's rarely popular to side with the capitalist pigs. But that's whose side I'm on, and I hope you'll at least give me the chance to explain why.

We'll do this in bullet points to make it easy.

-- Pregnancy is a wonderful thing. When possible, reasonable, and feasible, I believe all employers have a moral obligation to supply their pregnant employees with every consideration and accommodation. However, this moral obligation should not be a legal obligation. Why? Because, for one thing, only the employer can truly determine what is possible, feasible, and reasonable. For another, even if the employer is a callous jerk, he hasn't deprived the pregnant woman of any fundamental human right. Nobody has a right to a job at UPS. Is pushing pencils at the United Parcel Service a fundamental God-given entitlement enshrined in the Bill of Rights and infused into all men and women by the Creator of the Universe? Uh, that seems like a stretch, don't you think? Jobs at UPS wouldn't exist if not for UPS, and so it makes sense that UPS decides who takes part in the thing it created. I don't want to see any pregnant woman lose her job. I don't want to see any human being, pregnant or otherwise, lose their jobs. But this emotional conviction can't be translated into a legal imposition on private businesses, who have lots of difficult, uncomfortable, real world factors to weigh.

-- None of this has anything to do with 'sexism.' I've heard many people say something like, 'well, when a MAN can't do his job, they accommodate HIM!' No, when a man can't do his job they accommodate him as long as it falls under certain guidelines. If a woman's situation falls under those same guidelines, they would accommodate her as well. Complete equality there. If a human being, man or woman, has an accident on the job and breaks his or her back, they will provide whatever the company policy outlines. If the company policy prescribed different considerations for the same injuries depending on the gender of the injured, then you'd have a case to scream about sexism.

-- UPS may not have given Peggy everything she wanted, but she cannot claim that she wasn't accommodated at all. First they gave her leave so that she could undergo fertility treatments, and then they gave her leave when the result of the fertility treatment made her unable to perform her duties. Is it really so difficult to understand an employer's hesitation when a worker comes to them and says: 'I want leave so I can get fertility treatments, then I want a different job for nine months once I'm pregnant, then maternity leave once I have the kid, then my old job back after that.' This would all be great, I'm sure, but there are economic and logistical realities that every business must contend with. Why is that so hard to comprehend?

-- Speaking of which, who should lose their desk job so that Peggy can have it while she's pregnant? And who do they hire to do her old job? And who gets fired when she goes back to that job? And what if they don't have it in the budget to make these changes? And what if they don't need another person working a desk? And what if she's inefficient or ineffectual at that job? And what if her work ethic, skill level, and attitude can't justify making all of these adjustments on her behalf? And what about senior employees, men and women, who want to be moved to a light duty position but now get cut in line by someone who hasn't earned it? How could the government or the Supreme Court possibly have an adequate vantage point by which to take all of these things into consideration? Do you see why we need to let employers make employee decisions?

-- Consider the consequences here. If you force employees to treat pregnancy like a disability, you have also forced them to be very wary of hiring any woman of childbearing age. Fair or not, mean or not, unpleasant or not, business owners have to protect their business. If I'm in their spot, and I need to hire someone to do some kind of manual labor job, and I know that if I hire a woman and she gets pregnant I'll have to fill her position again, invent another job for her to do for nine months, hire someone else for that position, and then give the position back to her and fire the other guy, I think I might, God forgive me, just decide that it's not worth the risk, the expense, or the trouble. You can stomp your feet and insist that employers should pretend they live in a fantasy world where these kinds of regulations represent no hardship or financial drain at all, but that won't change anything. These people are in business because they do what's best for business, which is why they're in the position to offer anyone a job in the first place.

-- I'm an avid pro-lifer, as I'm sure you know. But there's something especially morbid about turning this into a pro-life issue. I've been told that if I want to stop women from getting abortions, I have to support federal regulations like this, which is the rhetorical equivalent of putting a gun to a baby's head and saying, 'Make this law or I pull the trigger.' Talk about a false dichotomy. As I said, I completely, totally, without hesitation believe that all human beings should do whatever they can to help pregnant women. I believe employers bear that moral responsibility, too. However you can't turn the moral responsibility into a legal responsibility because you, the Supreme Court, and the feds can't look into an employer's heart and assess his motivations, nor can you really look at his books and assess what sort of accommodations he can afford to make, nor can you sit in his HR office and decide who gets hired or fired to make the accommodation, nor can you stand off at a distance and declare that this pregnant woman is suddenly capable of doing some other job, nor can you wave your wand and make that job appear out of thin air. You can't. The government can't. The Supreme Court can't. Only the employer can, and even he can't do the magic wand thing.

-- We have to make choices in life. We cannot always expect others to assume the responsibility for those choices. Peggy had the job delivering packages. She knew that it required her to be able to lift 70 pounds, and she signed on the bottom line confirming her ability to do that. She then decided she wanted to get fertility treatments. She knew that the fertility treatments would probably result in a pregnancy, and she knew that pregnancies limit your ability to lift heavy things. Fine. That's her choice. Her choice. How in the world could she claim to be the victim after intentionally disqualifying herself from her own position?

-- With that said, I certainly believe that family is more important that any job. I'm on the record saying that I think more people should have more kids sooner in life. We shouldn't let the dictates of our corporate masters determine when we start a family. But sometimes our decisions in our private lives conflict with the realities of our professional lives. At that point, we may be forced to choose between the two. We may want both, but that may not work for the other parties concerned. It is our duty, then, to respect their decision just as we wish for them to respect ours. Crying discrimination and filing a lawsuit is not reasonable, it's not dignified, it's not right, and it's not just.

-- I think proponents of a Pregnant UPS Workers Protection Act, or whatever the inevitable legislation will be called, need to get their terms straight. On one hand, they say that women are being discriminated against, while on the other crying that women aren't being treated equally. Wait, do you want them to be treated equally or do you want discrimination? You can't have both on this one. As it stands, they're being treated equally. There are certain reasons why a worker of any of the 52 genders can be reassigned to lighter duty. All workers of any gender can equally qualify under these parameters. This is equality. The same rules governing men and women. Equality. Now, if you want special considerations afforded for situations unique to women, then you are asking for a discriminatory law. A law for pregnant women could only be 'equal' if a similar law existed to protect men in a condition similar to pregnancy but unique to men. I don't think such a condition exists, and I know such a law doesn't exist.

-- Finally, as I'm sure many people will point out, I only said all of this because I'm a sexist monster who hates women.

One last thing…
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