everybody will ultimately get the vaccine. if it works, that that is good. the other trial, the randomized trial, you can

probably get an answer of efficacy more quickly. once you get the efficacy you we will distribute that vaccine to everybody and anybody who might benefit. ultimately if ultimately if it works everyone we will get. that is the framework. then we look at the advantages and disadvantages if you are distributing a vaccine before you no it works for the advantages if it does work you get it to people quickly. the disadvantage is you may not ever prove that it does work. the inevitable next outbreak we won't no if we have a vaccine that works. the issue with the randomized controlled placebo trial as some people are not getting it right away. away.

there is an absolute understandable desire that if something will be beneficial get it their as quickly as possible. i will finish with this. i mentioned this at another seminar about the issue of the difference between therapies you make readily available for which i was the champion versus a vaccine that you don't know works. and there is big difference. you are giving it to people who are healthy and people have a terrible illness. the thing that thing that i will never forget is that a vaccine for hiv that looks really good in an animal model, it passed phase 1,

was safe, no prohibitive event. it even. it even went into phase ii a and looked good. the decision was that if you look at the bola, seven, 8,000 people have died. over the last four days 16,000 people have died from aids. you aids. you could have made the argument that as soon as you have that safety data give it to everybody who needs it a terrible, catastrophic pandemic. in the randomized controlled double-blind trial we found out that there was a 41 percent increased risk of getting hiv-infected. and it had nothing to do with behavioral changes. it had to do with the vaccine. that is one of the reasons, we, when you are dealing with giving something to someone who is an otherwise

normal person, i don't know what the right answer is, but you at least need to seriously consider the pros and the cons, and that consideration has to be with the people in the country who are going to be involved if they if they don't want it they should not get it. so -- >> and a negotiation balancing out the urgency, urgency, the operational environment, demands from the community, and that is all to be determined, a mix of tools and approaches. >> i am very supportive of the view being expressed,, and i would like to add two dimensions. between 12 and 18,000 children.

the proportionality. very important, in january, february, march, april and the nice. and the issue of having people at risk in acquiring a bola will exist outside of the design. this is not a situation where we could potentially immunize the whole population. even if we wanted we couldn't. and i think the ethical questions are keeping people away from vaccines. could be extended to the overall population.

it's part of the reason why. there's nothing else you can do for providing the vaccine to a smaller proportion of the population. of course, engaging in the agreement is absolutely paramount. being put forward, hard to make vaccines on all of them. we don't no which ones. i do have a concern. if if you look at what is happening in liberia, we would be thinking the decrease in events now related to the vaccine. actually would think. have a very balanced proposal and scientifically

sound discussion. >> this is really hard. i just want to jump in here with the perspective because i completely agree and think participatory is the concept that needs to be emphasized. it is one thing to sit in a corporate headquarters and think we no the best way forward. is different to have a conversation with the people on the front line to see medicine differently and have a different cultural context. that participatory element is important and probably the thing that worries me is even if we knew the vaccine worked, will people take it back that is a problem that we have seen with vaccines have been around. we have this incredible vaccine hesitancy. i think it's going to be difficult to help a population have trust and confidence.

for more participatory the decision process more transparent we all are the more likelihood we are to bring whatever we can to actually be at the front line. >> wouldn't be would it be accepted by the local population, to have the committees and really getting acceptance of the people that participate in the trial. issues arise, it has been approached in an objective way. start procuring the vaccine. so the social thinking about how to involve a certain population if issues do arise, it we will be important to make the successful. one thing i would like to add is how we we will go

later on demonstrating for later vaccines, whether we we will have to go to trials again. when when the vaccine becomes even more controversial, whether we should start looking. certainly a discussion that we will need to have. >> well, of all the organizations here, the one with the deepest on the ground, closing, extended contact knowledge. i am sure you are pulling and divergent directions in terms of this issue around ethics and trials and community relationships. how do you see this? >> the basic summary is what others are saying. communication and

acceptance. that is just part of the dna of the organization. we have not finished the design for the back scenes. we have made a decision for trials on drugs, not introduced randomized trials , a decision that was taken early on. this was this was something that we would be unable to do. criticized elsewhere, historic trends in some of these communities in terms of the outcomes in terms of mortality rates and the understanding of the shortcomings of the medical provider. something that we would be able to engage in. there is reasons again, again, the.you made is an

excellent. i think we need to understand that. someone who is sick versus a vaccine. there is no criticism of design of trials they can be anything. you need to really do what is acceptable and what you feel is best so that there is no space between us on that. >> one of the issues that has surfaced his coordination, how to make sense, how to track and coordinate efforts, took the step last week with the board to put it so forward. i would like to ask to just say a few words. there is a microphone right here. how does this step we will put in place mechanisms that build confidence around the coordinated effort looking forward.

>> i will do my best. thank you for hosting this panel, the group of people that are really in the middle of all of this right now. it is great to be here. just to give everyone a little bit of background, in september our executive committee of the board as the secretary to basically look at ways that there could be a role in the outbreak in the crisis. basically there has been a tremendous amount of work that has been done, a lot of work with the people on the panel and pretty much every stakeholder that is involved in the process. that all came to a.that our board last thursday where the board discussed the idea of what the role would be. the decision was a couple of

things. everybody, a funding envelope of up to $300 million, the procurement of a vaccine once it is deemed safe and effective. there is also another 90 million, up to up to 90 million for two purposes. one is around the vaccine, and the other piece is around recovery of immunization systems. everybody is aware that immunization systems have been decimated. a huge reduction and immunization. these countries are going to have to rebuild. we will be part of the solution. it is important for people to understand. some some people no that we are just weeks away from our second replenishment. the number that we are looking for, seven and a

half billion dollars. in addition to what we were looking for, it's for, it's important to no that the funding is additive and not part of our regular critical immunization work. you know, what we are doing, we doing, we literally just made this decision four days ago. the work is already started to really get ourselves in place to be ready when a vaccine comes about. work streams of been created around the areas. picture meant rollout, future outbreak and recovery of the system. we are working to ensure that these pieces are all set. we are prepared to roll it out. as far as the recovery, as i

said, countries are still in the process of figuring out what they need to do. ready to start rebuilding, we are their. as far as the role we play, what has happened in the last two months shows the important role around immunization and strengthening health systems. there is that piece. going going back to what everybody says around partnership. we will play a certain role in the vaccine process. in order to ensure it is getting to the people that need it. we will rely on partners on the ground along with all of the other folks. >> thank you very much. and there seems to be a pretty strong consensus

among the speakers that future business needs to be done on a different basis and that part of the centrist action process is looking ahead with that in mind. could we get a little more particular, little more concrete as to what actually would you see as the essential changes in practices and coordinating mechanisms and the planning and creating incentives? >> one thing i think we all agree on, companies crave predictability. we would like to have the confidence that if we start something we can move it to its completion. we would like to have the confidence. if we have a government partnership that that partnership is good to the duration of whatever it is we're trying to do and not

something that we will go away with the next election or challenging circumstance. that is one aspect of it, the confidence that if we are going to make an investment in the partnership that the partnership can hold. an example where that happened. code through on its commitments. that is a necessary component. all of us would benefit from a a public that is more informed and reliably informed about why these kind of investments are important. we have a conference, and people need to commit. in order for that to happen public to understand the value proposition that we are creating and why it's important to vaccinate and what is the benefit of the not only the children or

adolescents who are benefiting from immunization , all of the people who benefit, the benefit to the people who don't have affordable access and the advantage to the rest of us. i think it is important that we not be shy. vaccination is an important public health good. we become global. one traveler away from a threat in our own neighborhood if we don't do a good job of sharing affordable access. in terms of how we develop pipelines of vaccines, one of the areas for opportunity that we are exploring not just in the context of the bola but for many of the other so-called neglected diseases, the pre- competitive collaboration. increasingly very interesting places where companies can come together and work on projects, bring

different ideas together long before there is a product, a candidate target so that we kind of can share in our own intellectual capabilities but also partner with the people in academia or other kinds of companies and nonprofit organizations to bring the best ideas forward long before we are targeting a product. the neglected diseases are probably the only way to harvest that intellectual competency and expedite its useful fruition. >> year from the other two industry representatives. permitted. specific ideas around what we should do going forward. vaccines exist. those that exist, to ensure access.

fundamental and providing that flexibility. the challenge actually is innovation. to go into areas of diseases and they key element, the outbreak. the many that have scares that occur. very fortunate that none of them actually turned out to be one.

so we so we actually don't know. we need to be very careful to be much more prepared. the way we look at this, the vaccines are concerned, vaccines work. the viruses, there is a great technology that can be used. to the extent we can predict which vector, which technology, which platform may be best suited. so i'll recommendation is actually to create an organization, and exactly how we can organize unfunded

and create the organization that can identify four, five, or six and prepare them to go at the speed of reaction. use them to build vaccines. and have those vaccines available. but also, when we have not predicted the pathogen, the scalability is built into the platform. >> collaborations would be a new, grand collaboration in which the industrial would be sharing in this. it can also be competitive. both are possible. there are very significant synergies between the way

the design of vaccine for ebola and a vaccine for another disease that is more commercially relevant to sustain a business that takes the risk of innovation the more that you generate from one can serve the other and vice versa. i think there is a need for a concerted effort and an organization that is dedicated. i i would like to say something else, if i may. one of the points in this particular situations is that if the company did not care about a bola, no one would talk about it. we need to be careful. those who actually make a commitment, any form of

dimension or contribution, to commit the resources,, discover, develop, manufacture and take all the risks. not those that are. the first big difficulty. because the commitment. enormous investments are made in r&d. they need to be able to sustain that innovation. i think we need to have the

same time stay in business and at the same time commit outside of conditions. that is what the company should be expecting. every time. on a grand scale for many, many more pathogens. >> it is an excellent idea. a little more discussion. quite similar in terms of responsibility in thinking. we do have a dedicated public health group. through its r&d only on those type of protests. too many of them. looking in to working together, a network of partners, big companies or institutes. so. so i do think that part of

it is there. the difference was made to the department. need to start thinking differently on how drug specific antibiotics are working. the normal high setting does not work. into other ways, not to make them expensive. taking into account such that they can be made. >> turn to tony, and then we we're going to open for questions and comments. this question of what needs to change. >> we recognize the efforts that companies are making right now, and we certainly appreciate that. if you take the example, that example, that was only acquired because you purchased the company for

another vaccine. unfortunately this was just included. so we recognize the steps that have been taken. the vaccine was developed by the government of canada through public funding and have shown activity through their efforts. just to take a step back. we only have one system of innovation today. and that is something to push for, have globalized in the 1990s. the own the system of innovation. this is what you asked for. that is what we are actually having to deal with. that is one of the symptoms were basically the result of what we see with the outbreak today. people can dispute that, but companies today are still pushing for higher and higher levels of intellectual property. actually solving them.

now,. now, in terms of things such as product development and one of the first, in 2,000. while we don't necessarily disagree with looking for the solutions about technologies and platforms, the product development partnerships, we partnerships, what we are seeing today is adding more and more of them,, what we're seeing in our system. we have been doing is working with the world health organization to document the systemic failures. the world health organization has come out with two comprehensive reports that show the extent to which our patent system is not developing drugs and vaccines and diagnostics that are needed. they have developed a range to try to debate and ensure

that we can have the public health tools that we need to respond to emergencies like this and the everyday problems we see in developing countries. there are a range of recommendations that move outside of the patent system , the cost of research and development so that we can actually focus on public health needs to develop public health goods which is what we are doing today through substantial public investment, procurement mechanisms. we are essentially developing these vaccines, just through a sort of i i guess random and stepwise process. unfortunately a lot of people and industry have been fighting against these because they challenge our existing system. we have been continuing to advocate because we are concerned. we have already seen some success with the meningitis a vaccine, various partners

that developed an effective second-generation meningitis a vaccine that essentially delinked the cost. it can be done. our concern is that the solutions that are coming out are just more of the same. completing negotiations of the transpacific partnership agreement, seeking to introduce the highest levels of intellectual property protection, and none of that will deal with these problems. and again, we again, we do think that these new problems are not just for ebola or neglected diseases. we basically have the united states saying we cannot rely on industry to develop the antibiotics we need. substantial new forms of funding. recently. we simply think this can be applied on a much broader scale and is necessary

because otherwise we just continue to face these problems. we need new ways of thinking thank you. >> what needs to change? >> the comments of my colleagues on the panel were right on, and on, and i agree completely. just maybe make one or two brief comments in a different area. what they said is probably the most important thing. it thing. it is two things. it has to do with something we have been dealing with, the issue of changing in the sense, making sure that we pay attention to something that has been started that has recently been crystallized in what has been called the global health security agenda, in other words, to try and develop some sort of an infrastructure in the developing world so that when you go into a country

for one reason or other you leave some sustainable infrastructure that could be intellectual, physical, mostly intellectual and training so that the countries involved, if we had had some sort of a infrastructure. very interesting. since 2003. not 2,003. not only had a major impact on hiv but has also left in country and extraordinary infrastructure of people committed to the health of that nation that has now transcended hiv in a way that involves a variety of other diseases, maternal health, child health, vaccinations for individuals, measles

programs. individuals, measles programs. we really need to pay attention. i have extraordinary respect and admiration for the courageous and amazing things. the cavalry cannot keep coming in every single time. they only have a limited amount of resources. we need to start developing some in zone groups that can do that. the other thing, i could not help but think, these are surprises that are not surprises. we have to to get the mindset to realize that outbreaks actually occur. when you're dealing with an infectious disease you should be expecting them. some of you may have seen that show. the guys in the army were saying why are you going in? looked at him and said that

we are paratroopers. we are supposed to be surrounded. [laughter] the same thing with infectious diseases. you should expect that their will be outbreaks, and we should not be surprised. >> a very good image. let's open for some comments and questions. we will take three or four at a time. down here in front. please identify yourself and be brief. >> thank you very much. we were the ones that jumped on the last people a grenade.

[applauding] thank you. i wanted to bring the issue that i think is very important going forward , the issue of stigma. now, i have come here because of what lies ahead. in a country of 160 million people 18 people were affected, 12 were from my hospital. now, eight have survived. it has been declared that their are zero that have the antibodies. now, in the country and in the continent, 70 to 90 percent of the people get

their health care from the private people, people, how are we going to be able to introduce this? right now the practices stop the fever. if you have a fever you don't come in the hospital. so how are we going to convince them? i heard the comment about participatory because it means that you have to really go in there and talk to the people and get to no how to overcome their fears, which we now know as a stigma. >> thank you. >> thank you. >> let's take a few additional comments and questions. right here. >> my name is wayne penn the bianchi. i take my hat to all of you. i think you have done a marvelous job.

it's really quite miraculous. one observation that strikes me given the number of patients and the deaths, if i understood some of the earlier slides, only two drugs are being tested. it seems to me in this country alone their must be many candidate drugs, and i wonder how the funnel got that narrow the mac. >> there is a gentleman right behind you there. >> yes. eight years ago the international red cross warned about the development of biological weapons that can target people based on genotype. for instance, race. of the 16 white or yellow people who have contracted ebola, all have survived except in elderly spanish priest. all the people who died of a bull are black. is that that mortality distinction in

addition to the office chart number of deaths suggest that the west africa ebola variant may be weapon nice diversion? >> let's take one another. right here. >> thank you. again, i commend the effort. i am. i am the head of r&d at novak's. the effort is commendable, and i don't want to put any potholes and what we should do. the companies have mobilized in a tremendous way cooperatively. i would.out that these are vectors focused on just vector technology. they have not really worked in other settings. they settings. they have immunity, developed immunity to the target antigen. they have nonhuman primate

data. data. i believe a plan b should be at the forefront for a second kind of vaccine if there is some chance that when we come to phase two will look at this and say, i don't know if that is something we want to push forward. i appreciate comments. the long-term plan sounds like it is being discussed. is there a short-term their a short-term backup plan? >> thank you. the question around overcoming fears and stigma. a question around, question around, is it only two drugs in development, question around differentiation between black versus white. and then plan b, plan b, should there be a formal plan b? who would like to jump in? yes. >> with regard to overcoming the stigma, i certainly don't have a solution, but

the.was made earlier that people who are organizing such a study will need to have a lot of attention to specific aspects. it reminds me that we did trials in senegal in the 90s and really had to study nurses who went into the compound and actually really took the time to tell people about the vaccine. an objective to have the vaccination done that day. it takes a lot of time, explaining and discussing so that you really get a trust the trust of the people. i do think that socializing is an important aspect that teams will need to take into account. >> so we should not underestimate how much of a challenge this should be.

there is a stigma, implications. for instance, if the vaccine induces fever, exactly how the community will react to that is something that you really need to be on the ground and work hand-in-hand with the local community and investigate to make sure there is not an unpredicted reaction that can be extremely detrimental to the introduction of the vaccine or clinical trial. and i think the larger the population the more concerned there we will be that their will be association.

so very, very, very important issue. in the second point. >> i just wanted to add, if you study the history of infectious diseases, whether you're talking about smallpox, plague, smallpox, plague, pandemic flu, it is a history of stigma. inevitable complication of the fear that outbreaks engage. we would be naïve to think that it won't be a major a major challenge with the situation where facing here. maybe not worse than it is anywhere else. during sars people do not eat in chinese restaurants in toronto. highly educated people are vulnerable to that kind of irrational response to a threat. we know that. we don't have an easy solution, but one really important aspect of it at least in my experience

has been finding the local people who are trusted and help them understand the whole situation so that they can speak on behalf of their communities and try to generate a little critical mass of trust. >> did you get to complete your thought? >> on that, yes. >> stigma also seen in the united states. some of you may have seen the television shows of all of the survivors. and they are asking, are you being embraced? and they said, it is like maybe 6040. 60% embrace them and 40 people -- 40 percent stay away. one of one of the survivors made a.that it is easy for him to get a table a table in a restaurant now. [laughter] it is not just in nigeria. >> nigeria. >> a couple points on stigma some people may have seen in the news the treatments of returning volunteers.

a really big concern for us. we need to encourage them to make the sacrifices. it is important important to note, now in local communities and effective communities working on local communications on the ground. these other resources. doing resources. doing very hard work with people in the local community trying to communicate. i think to the extent that this is focused on the medical aspect it loses sight of local communities. also the idea idea that this is not going as an organization doing a lot of trials but have not stopped our urgent calls for more teams and infrastructure to go into the field and for governments to offer

funding. there will be be a separate discussion on diagnostics. that will be critical. >> on this question around pipeline drugs, we were only testing at the outset because of concerns of supply. there are others we are looking at, consideration, some repurposed drugs to the extent that there is supply and good safety data. there will be others that are used. >> this question around survivability. >> too many confounding factors. if you look at the people who were infected, a substantial portion of them were either act to the united states. that does not not mean that the physicians in west africa are not as

good as the physicians here that you have one or two physicians taking care of 30 patients whereas there we had seven of us at one time. i think the survival of people when you are in intensive care and monitoring your electrolytes and central in central line makes a big difference. i think that just happens to be the distribution of people. >> i think there was a.being made, it's absolutely key. we don't no which. we don't have enough vaccine depending on how the situation unfolds. we need to be able to pursue all of them.

>> thank you. a very nice way to draw thanks to things to a close here. we're at the end of our time this this has been an exceptionally rich and informed discussion. i thank all of you. thank you for joining us and weighing in. thank thank you so much. [applauding] [inaudible conversations] [inaudible conversations]

>> coming up tomorrow on our companion network network the under-secretary of state for arms control and international security will speak about the administration's nuclear arms control effort. see it live at 10:00 a.m. eastern. the senate environment and public works subcommittee holds a a hearing on the epa proposed regulations and that cutting down smog and ozone pollution. >> your are some of the programs you will find this weekend.

find our complete television schedule at c-span.org and let us know what you think. call us, e-mail us, or send us a tweet.

join the c-span conversation. like conversation. like us on facebook, follow us on twitter. >> next, next, the supreme court hears oral argument. a case on employer accommodations for pregnant employees. peggy young is a former ups driver who was denied a light duty assignment during her pregnancy. she took extended unpaid leave and lost her employer medical coverage. after giving birth she sued. this is an hour. >> we will hear argument this morning. >> thank you, mr. chief justice. peggy young had sought

relief the summary judgment record reflects that ups would have granted that accommodation. because her 20-pound lifting restriction resulted from her pregnancy and not from one of those conditions ups rejected her request. that, we submit is a violation of the second cause of the pda means that when an employee seeks an accommodation or benefit and is entitled to the same accommodation. >> you make it sound as if the only condition that was not accommodated was the lifting restriction. i did not understand that to be the case. that is the way you start. it is only pregnancy. >> i think on the summary judgment record the three broad classes of limitations do cover the waterfront of everything. our position is that those three broad classes -- >> sorry. >> i think that is a

necessary starting. it started it started out by really giving a misimpression. >> your honor, i submit that that that is not right. ups egg knowledge is that they provide accommodations to people with on-the-job injuries and also the summary judgment record shows that ups provides accommodations to record with off the job. and ups has not been able to.to a single driver who did not get accommodated was not pregnant. >> what would your case be, people who are injured off duty who do not get light work assignments? you said that the three categories that do. let's suppose one category does not. >> in that case, our position would be that the

employer would be required to treat the pregnant plaintiff the same as those classes of employees who get accommodation. >> it does not have to be read that way. it could be read that way. it could also mean that if you give it to employees generally you have to give it to pregnant employees, employees, although their may be special classes. an example, if you have your senior employees driven to work when they are unable to drive themselves you have to do the same. >> no, no, we would not say that. the statutory text requires that employers provide workers who are disabled by pregnancy had a similar

effect on the ability to work. what the statute prohibits discrimination based on the source of the workplace limitation, not seniority. >> suppose the brief as you have seen it, giving these benefits to anybody, and suppose they do got themselves in danger. the harm or or the disability is precisely the same. the source was different. this came from doing something special. again, that kind of problem.

i don't no the source gets you out of it. >> i think the important.is that is an example of what may be an idiosyncratic decision to provide an accommodation to a particular employee. >> i don't know. i don't no all of the workplaces and can't imagine that employers have all kinds of different rules for different kind of jobs. are you saying as long as there is one job in respect to which they give them benefits when you are heard on this job but not on others. you have to give them to all pregnant women who hold different jobs. the answer to that must be no, but the problem for that and for you is how do you distinguish your situation from that? >> and the question to me a minute ago contains the

seeds of the answer. it seems to me i might agree that an employer that provides a particularly good deal to a single month pregnant employee. >> there is a class of people. >> right. when you have an employer that provides to a large class to its employees generally, many of its employees this accommodated work treatment. >> the other question, and it is the only other one, it seems to me that there is a way given your theory, a quite easy way for you when which would be to bring a disparate impact claims. that is what i thought disparate impact claims were about. since you did not bring the disparate impact claims and therefore what am i to do because i i don't know that you want to twist the disparate, you know, intent claim out of shape when you have such a beautiful vehicle to bring a a claim

of the kind you just articulated. >> the vehicle to bring the claim is the second clause of the pda which says that women affected by pregnancy, pregnancy, childbirth, and related conditions shall be treated the same. >> you read that as an accommodation provision basically. maybe it is, but let me ask you this question which goes to the issue of whether the types of accommodations that you would set required have to meet some reasonableness standard will consider two categories of employees that have lifting restrictions, people that work alone and list all the time my driver driving a truck by herself and has to lift heavy packages all the time.

the second would consist of people who lift more occasionally in a place where their will always be lots of other employees in the same class available to do the lifting. if an accommodation is provided to the workers in the second category would you say that one must also be provided to workers in the first? >> i i don't think so. a driver who is pregnant is entitled to the same accommodation her employer would have given her if she had sought it for a different medical condition. >> why doesn't that second class that? >> in our view by drawing this distinction between employees affected by pregnancy, childbirth, or related medical conditions, they cannot draw that distinction. instead they look only at the ability to work prohibiting discrimination based on the source.

it does not prohibit discrimination based on different job classifications. if an employer says no driver drives alone we will get an accommodation whether for an on-the-job injury, dot disqualifying injury or pregnancy, that is fine. we do not read the statute as an independent reasonable accommodation. >> but why then -- i am not quite understanding why you get the source classifications into a different category from all other classifications. explain that. >> it goes to the statutory text. the statutory text says women affected by pregnancy, childbirth, and related, and related medical conditions shall be treated the same. what that text is saying is to an employer don't consider whether this person is affected by pregnancy or not. that is not the basis on which you can compare this employee. instead based on ability to

work. this was adopted in response to general electric the gilbert which upheld an employer policy that distinguished based on the source of the disabling condition, treated sometimes differently. >> you are reading -- you have admitted other persons can't really be read literally. ..

>> >> and what the court said was the act is discriminatory pregnancy related conditions less favorably than other medical conditions and etfs with the three very large glasses is with pregnancy related conditions less favorably. >> said new do research it is a most favored nation position you must give the benefits that you do to any other class. >> any other class of

employees. >> it does not matter if it is small. >> but this is a tax that requires some degree of interpretation but your honor articulated one way to think about it that provides the accommodation to employees generally and certainly when the employer provides benefits to such a large class of employees who were not pregnant. >> does the record show that class's better given special treatment is almost everybody? does the record show that? ltd. is sufficient to show that. number one the on-the-job injuries that ups acknowledges they provide accommodations. number two dot provides accommodative work force we have examples of individuals

who have offered a job injuries who have been given accommodative work and any driver with a similar restriction. >> if you could win your case with that argument argument, assume that. but that does not help me which i rather selfish about because my job here is to write what this statute means for a lot of cases. anger and if you give a lot of benefit to lot of employees but not the pregnant women and you don't give it to some employees in the not to the pregnant women in the employer says they're like the few we don't give it to, you lose.

by the time i have written that into the u.s. code nobody knows what i am talking about. i need to know how to interpret the word says that they would do what you want them to do. >> the important point is if an employer provides accommodations as a matter of policy to which class of employees and does not give this same accommodation. >> with the most favored nation? that makes sense. you can write that down. >> unfortunately it takes what you just said with a lot of employees you to have the most favored nation with two employees including those who only worked there for years with security.

-- seniority. >> that i understand. >> to say either stand it is okay to differentiate on the basis of anything which means work oregon work related. -- or non work related change -- injuries. what they will have to anyway? >> there is nothing in the legislative history to say we are not giving benefits. there are three statements in the legislative history that draws a negative inference from tuesday obviously congress did not mean to do that but the response is it has no such

limitation but on the job or off the job legislation general electric has a policy that contained the on the job or off the job that was on the flip side but if congress meant to save employers have an exception for on-the-job on-the-job distinction they could have said so if i can reserve the balance of my time. >> certainly. >> mr. chief justice and mail please the court the point of the disk -- pregnancy act to reduce the women driven from the work force or have a month without an, as a result of becoming pregnant the second clause of the pga events is that a narrow way.

it is not a freestanding accommodation requirements like title seven or the 88 and they say it is narrow because there is only one thing the employer cannot do with it affords benefits or accommodations it cannot draw distinctions that treat pregnancy related mental conditions worse than other conditions of comparably fax on ability to work. >> with the u.s. postal service is the government for all intents and purposes ? so can you explain?

it is filled with things as far as we know. >> of course, . is correct the department of justice with the postal service practices beyond this case. we acknowledge that in a footnote in the brief to this court. since then the eeoc has issued guidance that is a significant factor. congress is charging with authority to interpret a statute. >> but we don't give deference we don't give chevron deference. >> the government has interest? come on. you give that to me? even when i am in dissent? that just means a treated for what it is worth.

>> cassettes the influx -- the point a policy we took into consideration for what it should be. >> is it the same with the 2014 guideline had not been adopted? >> we did not take that position before justice kennedy cited not to the answer that question because it was in light of the guidance of 2014 which we do consider to be significant and way our interests as the enforcer of though lot. we do so on a considered basis is the judge what the meaning of the statute. >> we don't give you any more difference than and up eeoc question mark but the court has to decide the best reading. >> regards is. >> correct. >> hopefully i can answer your question. here is why.

on the contextual basis for our blogging the employer cannot do is to a pregnancy related conditions with a comparable defects of the inability to work. so security, full-time work work, all of those are permissible distinctions to make to differentiate. as the contextual bases, i'm looking at the statutes on page 12:00 a.m. 13 / 12th and 13th. it says among the class of people comparable with their ability to work, women with a pregnancy related medical condition in other words,

affected by pregnancy or related childbirth the statute says cannot be treated worse on the basis of their condition, that is what we think treated the same means than other workers of non pregnancy related conditions comparable to limitations. >> give me your interpolation. the words you added? >> on the basis of their condition. >> we think that is the best reading of the tax because it is focused on the condition and not say person >> starts at the very beginning and list the three things are reasonable distinctions i want you to focus on other workers in and it is which of their workers because it is easy to construct hypothetical cases where the employer who

treats some of the workers the same and not others in which are reasonable and how do we tell? >> but the first of the title xii claim and the nature of the anti-discrimination. first it is helpful to differentiate between the direct claim of discrimination versus proven through the mcdonald douglas framework. in order to have a direct claim, what you have got to show is the employer offers an accommodation to a significant class of employees and that accommodation fails the test i described earlier. we think that is most cases

and the kinds of examples for example, you have two issues there. you cannot make a direct case. you may have an explanation for that accommodation that would take it outside of the source with no liability. and with respect to that there is a second point to be made that person may as will be in a different job category. >> but to give the start to examples of idiosyncratic when a pregnant woman says that is not the same thing that is the isolated examples that could be clearing in the discriminatory. >> i guess where i would say

with the idiosyncratic difference to show the accommodation was granted not on the basis of criteria then to find there is no violation. >> i use that idiosyncratic example so what i use it to illustrate that employers have class's of people based on all kinds of different things. so some get the benefits equivalent to the pregnancy and some don't. how are we supposed to tell which that are consistent with the statutes and which are not?

mitt is a difficult question of the case and why i asked using the idiosyncratic to illustrate. >> of course, . >> then i will try after that to get very specific response. it is true some glasses are in and out but if the employer is discriminating against women or against overweight men it does not make the discrimination any less actual because it reflects a choice of food to protect or not to protect that is the choice women who have pregnancy related medical conditions. they chose to protect those.

>>. >> i think of a pregnant woman is entitled. that is correct. >> why is that discrimination? >> they are treated the same. >> not a separate category of people. >> the question is whether those benefits or the distinction is based on the source of her condition or a full-time status. >> answer my question on the

job or off the job is that what the case revolves around? >> briefly, yes. on the job purses of the job, that distinction it goes to the source to the impairment ever is able never qualify blessed deities cert category those that lose the certification and cannot drive that prevent them from doing the job that they have to do it is says exactly that. >>. >> mr. chief justice said if i could please the court you are exactly correct.

it petitioner believes the policy of ups was to provide accommodations for those injured on the job if there could have bedded disparate impact plan but she could have demanded did not bet she attempted to bring one late in the day was dismissed because it had have been exhausted. >> talk about the frame she did. so your news feed id of the statute makes everything after the ; completely superfluous. i thank you would agree with that. >> absolutely not. the reading is straightforward. what congress said the key words are the same as other persons other means a distinct so to treat those employees the same as a

distinct group better similar in the ability to work. >> that is the first provision when it says pregnancy is the save as sex all of that is taken care of by that clause. >> but how does title xii applied to pregnancy? but that is to repudiate. >> so with only explains the old stuff? tell me why. >> would i say is in a pregnancy discrimination case instead of comparing women with men like we would with the sex discrimination case but so to compare women and men with a policy that

discriminates against pregnancy nonetheless there will be women who are favored and those were not pregnant in the favored group. >> but that is not necessary because it would just be where you discriminated against before you were pregnant? yes i was are no i wasn't you don't need the other stuff of the comparative class. and it is a double redundancy everything past the ; is redundant but moreover the keep order this it is effective of their ability to work? that is redundant within the redundancies. >> with that last first with that interpretation would be to rewrite the words to

suggest if the plaintiff could identify any other single employee that they're entitled to the same accommodation it is the same as any other person but now they are both suggesting is just based on a source with seniority or status are outside the legal obligations. >> that is the question of the language. why not his seniority limitation? is there the alternative way to understand? >> we ought to be thinking about mcdonnell douglas this provides the comparative to

find a class of people who are given an accommodation if they are similarly situated in the employee points to that class that mcdonnell douglas dash a name player comes back to say no there is a good reason why i am treating that class differently that has nothing to do with pregnancy but to treat senior employees differently. and at that point if the employer makes his case the employee can come back to do just the way with any other case that is what this is about to identify the comparative the employee has to identify and the first instance to shift the burden from a the government.

>> it is relevant but not in the way you are suggesting but the way it is laid out when you make the comparisons you don't look at women and men as you might do because of a sex discrimination. >> can you give me of any example of pregnancy with sects? >> but that was not the question. >> so what you are saying is even though congress said and in though one clause in something in addition? >> i think that grammatical connector is very important.

petitioners can search to leave that first clause out entirely but the court has consistently understood those words of discrimination that is motivated by protected trade. if it does though worth the petitioners suggest if it motivated the adverse treatment this would read that of the statute. >> what is my middle ground? to say i have a legitimate policy were based on the source of the injury but it

is a question whenever an employee could point to a class of people to the accommodation who are not pregnant. >> but to tinker in the words of the statutes. >> gives us function for the key words of the statute better similar with their ability to work. it points to the comparator that sets off the mcdonnell douglas test that forces the employer to give her recent why it ought not to be taken as a discrimination against pregnancy. >>, but it is to repudiate the plays lucky to get women and men to say that is not

sexist emanation but that would have that class between disparate treatment and intent but to have congress track that distinction and justice stevens that the court says is codifying. >> with the language over -- after this ; is not there but the language before has effectively overruled gilbert. >> it would overruled gilbert. >> what is the different results? to provide certain benefits for employees to have an injury or a disease but not pregnancy? so would it be before the ; to require the employer to treat pregnant women the same as those who have an

illness or injury? >> it would not have precluded the court from the same logic. >> so that is not the recent? >> but you have to produce a different results if that is correct can you explain the language after this ? that when you look dash up policy that discriminates on the basis of pregnancy what you would typically do is to look at how women and men all are treated so you would conclude there is sexed discrimination. but this asserts to discriminate on the basis of pregnancy rather looking at women or men because all the non pregnant women --.

>> but you already said you don't think it does any practical work. but it is to avoid the case it does not attach special significance but what they suggest is a distinction vs off the job that is a distinction is long standing >> but i would like us to go

back to what justice kaye gibbons said. the mcdonnell douglas test i think should come in somewhere it shows i am pregnant, i could not lift, i was not paid anything to have comparable and abilities were paid. the al a distinction is made. then we have to decide is it legitimate? it doesn't sound very legitimate but that test must have been.

so is it that part or both parts. >> but to provide a mechanism for indirect evidence the disparate treatment so from that place you have the neutral policy that says on the job of accommodation and they cannot perform the essential functions anyone with an injury with a neutral policy you can bring the disparate impact -- impact plan. >> why not? of course, the employer will always have a neutral policy. it just turns out it happens

to hit the pregnant women and four other people. that is what we try to stop. so why not? >> so the distinction between the disparate impact plan of the adverse effects of a certain end class of employees with a neutral policy is distinct from what is on its face. >> this is what justice prior is talking about to provide accommodations with a non occupational accident. very similar to gilbert without the other fax.

we will provide accommodation but of course, pregnancy is not to non occupational sickness or accident so as a result pregnant women will not get accommodation tender stand where you are saying that is perfectly fine. if the policy distinguishes between occupational injuries and non occupational injuries. >> that would be acceptable and up plaintive that believes intentional discrimination. >> under mcdonnell douglas their good attempt to make deprivations case to show other employs were situated were being treated differently. what the petitioner points to.

>> but what they said by the front. it isn't an ambiguous. but after the service on that it leads to other results. >> the fourth circuit realizes that together that it just reads the first part. the policy does not treat some early employees but it treats me worse. the comparative is the first set is individuals

accommodated under the ada to realize. >> we disagree. but this tells you is that the imperatives of any class you can come up with to have the same disability and is not pregnant then the employer can say we had a good reason to treat that class differently and if you abide by that i don't understand why it would not be too many other respect? >> congress was unclear in its entirety would not depart from traditional principles but it was to correct the fact it was discrimination. . .