Guest Post by Kasper Lippert-Rasmussen
Professor Lippert-Rasmussen’s paper on indirect discrimination is part of the latest issue of the JPE
December 3, 2014, the US Supreme Court held its first hearing on the case of a former UPS driver, Peggy Young (Young v UPS, 12-1226): “In 2006, UPS forced Young to take an unpaid leave after refusing to accommodate her doctor’s order that she not lift heavy packages during her pregnancy… Young lost not just her income, but her health insurance as well” (http://www.latimes.com/local/abcarian/la-me-ra-supreme-court-pregnancy-discrimination-20141203-column.html#page=1). While UPS requires delivery drivers “to be able to lift packages as heavy as 70 pounds. Young said she rarely handled anything over 20 pounds and dealt almost exclusively with letters that sat on the passenger seat of her van”. Interestingly, however, at the time UPS also had a policy of providing temporary light-duty work to, but also only to, ”employees who had on-the-job injuries, were disabled under federal law or lost their federal driver certification” (http://www.theguardian.com/us-news/2014/dec/01/ups-employee-pregnancy-discrimination-supreme-court). Before taking her case to the Supreme Court, lower courts had dismissed Young’s lawsuit twice.
The case raises a number of interesting issues from the point of view of applied ethics. Here are three. First, who did UPS discriminate against – women or pregnant women? In support of the latter claim it could be said that women in general satisfy the relevant UPS requirement and that almost a fourth of the women on the US job market do not become pregnant. Still, the relevant requirement leaves men better off on average than women, at least in so far as the good of getting a job as a UPS driver jobs is concerned, and that might support the former claim. Also, even those women who never become pregnant are likely to be disadvantaged by requirements such as those imposed by UPS, because they are not easily identifiable by employers making decisions about whom to hire etc.
Second, in so far as UPS discriminated against women was the relevant form of discrimination direct or indirect? Roughly, the latter form of discrimination involves no intention to exclude or disadvantage those discriminated against. UPS could say that they had no such intention in regard to women, it just happens that the relevant rule, which clearly has some job-related rationale, happens—admittedly quite foreseeably—to disadvantage women relative to men. If so, they did not directly discriminate against women. However, the fact that pregnant women are at a disadvantage relative to, among others, disabled men even though disabled men are no better at lifting than pregnant women are, suggests that UPS is biased against women and accordingly that it directly discriminated against women, when they forced Peggy Young on unpaid leave.
Finally, did UPS wrongly discriminate against women in forcing Young and other pregnant employees in a similar situation to take unpaid leave? This question becomes particularly interesting if UPS harboured no discriminatory intentions relative to women. In that case, any moral wrongness of the relevant practice must lie in its consequences and not in, say, morally objectionable intentions or biases. In the particular case, Young was harmed significantly relative to a situation where, temporarily, she had been offered light-duty work. However, it is at least conceivable that, on average, some forms of indirect discrimination harm no one though they benefit some more than others—if everyone benefited equally, no one could claim to be a victim of indirect discrimination—and thereby create or increase inequality. Such cases are interesting, because the prevailing view is that one can oppose indirect discrimination without being an egalitarian. However, as I argue in my present Journal of Practical Ethics article, it is not clear that this option is a possibility. If so, one must either embrace distributive equality, or accept certain forms of indirect discrimination. I suspect many will see this as a hard choice to make.