It Could Happen To You…Why Pregnancy Discrimination Is A Cause For Concern

It Can Happen to You …
Why Pregnancy Discrimination Is A Cause For Concern

by Vladimire Herard

With a national economic recovery in motion in recent years and a 4.4 percent federal unemployment rate, a newer problem of more pregnancy discrimination cases is surfacing, U.S. Department of Justice’s Equal Employment Opportunity Commission, the U.S. Labor Department and several legal justice and workplace rights groups report.

Old and new businesses, government agencies and nonprofits generate thousands of new full-time and part-time jobs, recuperating over the years from the recession that started in 2008.

However, also with these gains comes a rising number of pregnancy discrimination charges as women of different ages and marital and parenthood statuses join or re-enter a stronger national workforce.

The EEOC is charged with investigating job discrimination related to pregnancy for businesses of 15 or more employees. Some states host their own agencies to enforce anti-bias state laws.

The Labor Department, particularly its Wage and Hour Division offices nationwide, probes complaints of family and medical leave discrimination in companies of 50 or more workers. Most states uphold their own family and medical leave laws.

Part of the cause stems from employers assuming that pregnant employees or those who gave birth are not as committed to their work as their non-pregnant peers or that they are no longer able to carry out their tasks as before.

Under the assumption that she would welcome this change without consulting her, some companies may provide a pregnant employee with a reduced schedule or fewer responsibilities, which may translate into limited opportunities for promotion or for less pay.

In 2013, 5,342 pregnancy discrimination charges were filed with the EEOC and state and local “Fair Employment Practices” agencies, an increase from 3,900 in 1997. Two years before, the agency collected 5,797 charges of pregnancy discrimination, a boost from 4,901 in 2006.

This form of gender-related bias cuts across all industries. However, workplace accommodation is most problematic in the retail and service fields.

The National Partnership for Women and Families reports that, between 1996 and 2005, about one-third of pregnancy discrimination cases, which represented more than 15,200 cases, originated from jobs in education, health care, leisure and other services.

To reverse this trend, the EEOC’s Strategic Enforcement Plan singled out eliminating barriers to pregnancy accommodation in provisions of the American with Disabilities Act of 1964 and 1990, Title VII of the Civil Rights Act and the Pregnancy Discrimination Act of 1978 as one of its goals for fiscal years 2013 to 2016.

The PDA bans pregnancy discrimination for any facet of employment, including in terms of workplace accommodation, recruitment, retention, termination, compensation, assignments, promotion and benefits such as leave and healthcare insurance coverage.
During the start of the millennium, the EEOC updated its guidelines for the first time in 30 years to include stronger language outlawing such workplace practices by upholding the provisions of the ADA, especially the Americans with Disability Act Amendments Act of 2008, and PDA and defining pregnancy discrimination as a category of sex discrimination.

Additionally, the Family and Medical Leave Act of 1993 permits new parents, including foster and adoptive parents, to receive 12 weeks of paid or unpaid leave to care for a new child.
Nursing mothers are also enabled to provide milk for their babies in the workplace under the Fair Labor Standards Act.
Employees are eligible for leave after having worked for their employers for 12 months. Both laws — the ADA and the PDA — are enforced by the U.S. Department’s Labor’s Wage and Hour Division offices.
In 2015, the EEOC received 3,543 pregnancy discrimination complaints. By comparison, in 2002, the agency got 4,714 of such charges and resolved 4,778, recovering $10 million in cash benefits for plaintiffs.
Civil rights groups such as Pennsylvanians for Choice and the Feminist Majority find in their analyses that about 40 percent of women nationwide face pregnancy discrimination at work.

Only one in eight cases of women actually filing complaints with the EEOC, their state or local agencies or Wage & Hour Labor Department offices, the groups report.

As a result of the trend, between 1992 and 2011, pregnancy discrimination complaints rose by 71 percent.
Throughout the country, women, whether in skilled, semi-skilled or unskilled labor, must take unpaid leave or stop working during their pregnancy.
About 66 percent of first-time mothers stay on the job while pregnant with 90 percent of them working in their final two months of their terms.
This makes pregnancy discrimination the fastest-growing category of bias complaints filed against employers with the EEOC, with a 39 percent increase between 1992 and 2003.
Definition of Pregnancy Discrimination

Under the law — primarily the ADA and PDA — an employer must treat pregnant employees or applicants in the same manner and with the same benefits it would extend to employees with other disabilities.
While at least 12 states in the nation have laws and policies dealing with pregnancy discrimination, California, Connecticut, Delaware, Hawaii, New Jersey and New York state have passed and upheld the strongest ones to protect pregnant employees when compared with other states in the country.
Pregnancy discrimination is defined by approaching women job applicants or employees unfavorably based on pregnancy status, childbirth or related circumstances.
With this type of bias, an employer might engage in the following types of illegal actions, both overt and subtle:
Fail to hire a pregnant applicant;
Fire or demote a pregnant employee;
Deny the same or a similar job title to a pregnant employee when she returns to work from maternity leave;
Treat a pregnant employee differently than other disabled employees, or;
Fail to provide a male employee health insurance coverage for his wife’s pregnancy or related conditions if a female employee’s husband already enjoys similar coverage from the company plan.
By legal definition, a related condition may be treated as a “temporary disability”. Examples include serious morning sickness, doctor-prescribed bed rest and childbirth or recovery from it.
Factors, Consequences of Bias
The factors and effects of pregnancy discrimination on women employees, her family and social circle are multiple, legal experts say.
They include the overall discouragement of women in the workplace, lack of knowledge of pregnancy discrimination laws, lack of evidence of bias, feelings of guilt, lack of access to health care and compromises to mothers and babies’ health.
Overall Discouragement of Women In The Workplace
While women have made significant gains in the workplace, new mothers still encounter difficulties in establishing and advancing their careers.
This restricts their freedom to choose if and when to start a family and to force them to elect their jobs over their home lives and health as well as that of their family.
As federal research bears out, women make up half of the workforce nationwide and 75 percent of mothers work outside of their home.
Many face difficulty supporting themselves or their families, working full-time or two jobs.
Women also comprise the main consumers in the country’s economy and their termination, resignation and unpaid leave affects their family’s financial stability and quality of life and the nation’s economic recovery.

Lack of Knowledge of Pregnancy Discrimination Laws
Regardless of income bracket and education, many individuals are not acquainted with anti-discrimination laws and policies.
By extension, most women — whether low-to-moderate-income or middle class — do not know pregnancy discrimination laws and policies.
Additionally, even with knowledge of the laws, women and their lawyers may find it challenging to determine what is legal and what is not with respect to pregnancy discrimination because most cases do not involve blatant actions but, instead, subtlety.
More likely than not, women employees in pregnancy discriminations may not have been aware that they were victims of such bias. In fact, some may believe that they failed the company.
Fears Over Careers
Most women employees, especially educated ones with middle incomes, tend to have much riding on their careers.
Over the years, they have completed college degrees, developed essential job skills and undergone training in their work settings. As a consequence, their social networks may be tight.
If they were to consult their attorneys about pregnancy discrimination or other categories of bias and have their cases litigated, they run the risk of being stigmatized by some important members of their network and potential employers as a troublesome employee.
With their career prospects at stake, their lawyers may advise them to take the ramifications of such litigation seriously.
Still, most women employees need not fear for their livelihoods for a number of reasons.
First, many pregnancy discrimination court cases, especially those involving educated, middle-income employees, are often settled before they are litigated so that no government files exist of these conflicts.
Secondly, employers stand to gain or lose from such cases as well as their workers. A company potentially accused of pregnancy discrimination must recruit and retain an individual to replace the woman employee it terminated.
There is much competition for highly-skilled and talented employees. Publicity for a bias case will not bode well for their hiring and firing efforts.
This leads to the reason women employees mustn’t fear for their jobs: the potential for an out-of-court settlement.
As part of the process, workers and employers both reach an agreement to not embarass or humiliate the other.
The woman employee will promise not to pursue the case in court if the company compensates her financially and neither violate the terms of the agreement lest there be future litigation.
Discouragement Over At-Will Employment
Many employees believe that at-will employment does not provide them with legal options should they face discrimination in the workplace.
At-will employment, which most workers are recruited under, provide the opportunity for a company’s leader or manager to terminate an employee for unfair and sometimes highly insensitive reasons.
The attorneys of the employees will discuss the definitions of at-will employment at length, almost discouraging them to take their cases to court.
This may give employees with legitimate cases the impression that, after much conversation with family, friends and their lawyers, that they should not take up a court case against a current employer but instead pursue their careers elsewhere.
In the process, the women employees do not realize that they could have secured their rights under the Americans with Disabilities Act, the Pregnancy Discrimination Act, the Family Medical Leave Act, Title VII of the Civil Rights Act and Fair Labor Standards Act.
They could have also received a solid severance package, a favorable company performance review and a confidentiality agreement before moving on to another employer.

Lack of Evidence of Bias
Many women employees fear that they may not be able to consult their lawyers and pursue their cases in court because they lack direct evidence of pregnancy discrimination.
If, for example, an employer gave a female worker a negative evaluation, it may not be evidence enough to prove bias.
However, a case lacking in direct proof of gender-based prejudice can be rich in circumstantial evidence, legal experts say.
For instance, in order to win a pregnancy discrimination case and as highly recommended, a women employee may create a timeline of her stint with the company from the moment she is hired to the day she is discharged, provided she holds an impeccable work record.
Perhaps, in one scenario, she is pregnant, suffers complications and must take leave as a result. She recovers and returns to work, refreshed, only to learn that she has been placed on a performance improvement plan.
With such circumstances and details, a woman employee could weave a compelling narrative of her pregnancy discrimination case that could help her win a case in court.
Compromises of Mothers’, Babies’ Health
With their pregnancy discrimination cases, many women employees have had to choose between safeguarding their health, their career, their financial security and that of their families.
In many instances, they had to ask for time to make a doctor’s appointment, lose compensation or remain without insurance or funds to pay for health services.
As a result, they lost income that could have empowered them to support themselves and their families.
Additionally, they did without crucial screenings or exams of their health or that of their developing fetus or infants.
Such deprivation leads to compromised health for a woman employee and her child, quality of life for herself and her family and lessened career prospects for her.
Vigilance Advised
With the factors and effects of pregnancy discrimination, legal experts advise women employees to remain vigilant of their workplace rights. They must recognize the signs when it happens to them and record their details.
The experts say must be mindful of the fears over their careers, guilt, lack of understanding of bias laws and policies and keep them from interfering with their ability to obtain legal justice, maintain meaningful work lives and safeguard their health and that of their family members, including their infants and children.
SOURCES:
American Civil Liberties Union, “New Mexico Teen Kicked Out Of School and Publicly Humiliated For Pregnancy,” and “ACLU Files Discrimination Lawsuit Against Bureau of Indian Education School,” www.aclu.org/womens-rights/hicks-v-edsitty-beach (article posted March 6, 2012)

Bakst, Dina, and Rowe-Finkbeiner, Kristin, Co-Founder & Co-President, A Better Balance, Executive Director & CEO, MomsRising.org, “Supreme Court Must Make Clear That Pregnancy Discrimination Is Unjust,” and http://www.huffingtonpost.com/author/dina-bakst and http://www.huffingtonpost.com/author/kristin-rowefinkbeiner (article posted Dec. 3, 2014 and updated Feb. 2, 2015.)

Bannan, Natasha Lycia Ora and Ingram, Joanna Cuevas, “Pregnancy Discrimination, Immigrant Women and Low-Wage Work,” The Huffington Post, http://www.huffingtonpost.com/author/natasha-lycia-ora-bannan and http://www.huffingtonpost.com/author/joanna-cuevas-ingram, (article posted April 9, 2015 and updated June 9, 2015)

Bates, Laura, “An End to Pregnancy Discrimination Is In Everyone’s Interest,” The Guardian newspaper, https://www.theguardian.com/profile/laura-bates, (article posted Nov. 29, 2013)

Fox, Adrienne, “How to Accommodate Pregnant Employees: The Best Way To Prevent Pregnancy Discrimination Is To Know The Law And Engage With Mothers-To-Be,” HR Today and HR Magazine, https://www.shrm.org/hr-today/news/hr-magazine/Pages/0214-pregnancy-accommodation.aspx#article-section-1 and https://www.shrm.org/hr-today/news/hr-magazine/Pages/0214-pregnancy-accommodation.aspx#article-section-5 (article posted Feb. 1, 2014) Gloudeman, Nikki, “When It Comes To Pregnancy Discrimination, Equal Is Not The Same As Fair,” Ravishly.com and The Huffington Post, http://www.huffingtonpost.com/author/nikki-gloudeman, (article posted Dec. 4, 2014 and updated Feb. 3, 2015)

Jamieson, Dave, “Meet The Working Mother Taking Her Pregnancy Discrimination Case To The Supreme Court,” The Huffington Post, http://www.huffingtonpost.com/author/dave-jamieson, (article posted Oct. 31, 2014 and updated Oct. 31, 2014)
Ness, Debra L., “The Supreme Court Should Say ‘No’ to Pregnancy Discrimination.” President, National Partnership for Women and Families, The Huffington Post, http://www.huffingtonpost.com/author/debra-l-ness, (article posted Dec. 3, 2014 and updated Feb. 2, 2015)
Spiggle, Tom, “The Supreme Court Could Soon Make Life Harder for Pregnant Women” founder, Spiggle Law Firm, http://www.yourepregnantyourefired.com, (article posted Nov. 20, 2014 and updated Jan. 20, 2015)
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