Felicity Fowler in HR Magazine: Close Supreme Court Decision Expected in Pregnancy Accommodation Case


Adherents to textualism like Justice Antonin Scalia try to glean the ordinary meaning of a statute from its text without resorting to legislative history. But sometimes the text’s meaning is anything but plain, as was illustrated in a tug-of-war oral argument over the meaning of a clause of the Pregnancy Discrimination Act (PDA).

The clause—the second one in the PDA—reads, “Women affected by pregnancy, childbirth or related conditions shall be treated the same as other persons not so affected but similar in their ability or inability to work...”

Most-Favored Nation 

Scalia characterized Bagenstos’ argument as “most-favored nation,” meaning that “if anyone else gets a benefit, pregnant employees have to get that, too,” explained Felicity Fowler, an attorney with Haynes and Boone, LLP in Houston. She told SHRM Online that much of the oral argument was spent coming up with proper comparators.

Excerpted from HR Magazine, December 5, 2014. To view full article, click here (subscription required).

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