This article examines dismissal law regarding pregnant employees. Under U.S. law, wrongful dismissals are covered by the terms and conditions of employment. Employment termination based on pregnancy is discriminatory, but enforcement of a pregnant employee's rights to continued employment and preservation of a position with seniority are problematic. This article reviews the changing values and attitudes toward pregnancy and employment reflected in case and statutory law. It outlines the shift from twentieth-century protectionism, the treatment of pregnant employees before and after Title VII of the Civil Rights Act of 1964, interpretations in case law, the 1978 Pregnancy Discrimination Act, and the Supreme Court's ending of exclusionary policies. The 1993 Family and Medical Leave Act is discussed, as are the limitations of this law to protect certain categories of pregnant employees. The Model Employment Termination Act is considered in light of these developments. Its possible adoption is viewed as offering a necessary safety net for pregnant employees, who are least able to pursue court action to protect their rights.
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References
1.
1. U.S., Department of Labor, Women's Bureau, 10 Facts about Women Workers (Washington, DC: Department of Labor, 1993). It would be tempting to critically examine this exciting and schizophrenic period in history, but such analysis is beyond the scope of this article.
2.
2. Under this doctrine, employers may dismiss at-will employees “for cause, for good cause, for no cause or even for cause morally wrong.” See Model Employment Termination Act (hereinafter META), Commentaries, p. 5, citing Payne v. Western & A.R.R., 81 Tenn. 507, 519-20 (1884).
3.
3. This article forsakes the more traditional approach of examining statutes first, then synthesizing statutory law with case law. Instead, it uses a strictly chronological description of the major legal developments from the early twentieth century to the present.
4.
For an opposing view, see Leonard B. Mandelbaum, “Employment at Will: Is the Model Termination Act (sic) the Answer?”Labor Law Journal, 44:275 (1993).
5.
5. According to one commentary, META will “remedy the inadequate protection of employee rights under existing wrongful dismissal doctrines.” Cyranoski, “Model Employment Termination Act,” p. 1529. The issues surrounding META's significance for the broader issues of wrongful discharge in general and the importance of its arbitration mechanisms are covered elsewhere in the present volume.
6.
6. This is based upon an actual case, although the names and places are fictional.
7.
7. Muller v. The State of Oregon, 208 U.S. 412 (1908).
8.
8. Lochner v. New York, 198 U.S. 45 (1905).
9.
9. Muller, 208 U.S. 412, 419, also discussing laws from other nations that limit the hours of work.
10.
10. Ibid.
11.
11. Indeed, the issues raised in Muller v. Oregon remain alive and vital today and may not be resolved even a full century after the case was decided. For an excellent contemporary discussion of the occupational health hazards faced by women, their medical effects, legal ramifications, and the effects as faced by their families, see Wendy Chavkin, “Walking a Tightrope: Pregnancy, Parenting and Work,” in Double Exposure: Women's Health Hazards on the Job and at Home, ed. Wendy Chavkin (New York: Monthly Review Press, 1984).
12.
12. Title VII, 42 U.S.C. § 2000e-2(a).
13.
13. Burwell v. Eastern Air Lines, Inc., 633 F.2d 361, 363 (1979), 23 Fair Empl. Prac. Cas. (BNA) 949. The airline policy included (1) a requirement that flight attendants must commence maternity leave immediately upon knowledge of pregnancy; (2) that pregnant flight attendants lose all accumulated seniority if they transfer to ground positions rather than taking maternity leave; flight attendants temporarily transferring to ground positions because of disabilities other than pregnancy continue to accumulate seniority; (3) fixing time limits on guaranteed rights to reinstatement of flight attendants taking maternity leave; (4) the separate treatment of pregnancy under Eastern's Group Comprehensive Medical Insurance; and (5) exclusion of pregnancy from Eastern's paid sick-leave policy and of the impact of such exclusion on other conditions of employment.
14.
14. Ibid.
15.
15. In re National Air Lines, Inc., 434 F. Supp. 249 (S.D. Fla. 1977).
16.
16. Harris v. Pan American World Airways, 649 F.2d 670 (CA9 1980), on appeal from 437 F. Supp. 413 (N.D. Cal. 1977).
17.
17. EEOC v. Delta Air Lines, Inc., 441 F. Supp. 626 (S.D. Tex. 1977).
18.
18. MacLennan v. American Airlines, Inc., 440 F. Supp. 466 (E.D. Va. 1977).
19.
19. Burwell, 633 F.2d 361, 372.
20.
20. Ibid., p. 383.
21.
21. Condit v. United Air Lines, Inc., 558 F.2d 1176 (1977), 15 Fair Empl. Prac. Cas. (BNA) 676, 14 Empl. Prac. Dec. (CCH) P7752, cert. denied 435 U.S. 934 (1978).
22.
22. Ibid.
23.
23. “Effective July 10, 1967 marriage shall not disqualify a stewardess from continuing her flight duties except as otherwise provided below. 1. All married stewardesses in the employ of the Company subsequent to that date must, on penalty of discharge without recourse, immediately advise the Company of their marital status (including subsequent divorce). 2. On knowing she is pregnant, a stewardess must resign or be discharged without recourse.”In re National Airlines, Inc., Maternity Leave Practices and Flight Attendant Weight Program Litigation, Gardner v. National Airlines, Inc., 434 F. Supp. 249, 254 (S.D. Fla. 1977), 14 Fair Empl. Prac. Cas. (BNA) 1806.
24.
24. Cleveland Board of Education v. LaFleur, 414 U.S. 632, 94 S. Ct. 791, 39 L. Ed. 2d 52 (1974).
25.
25. As cited by the U.S. Supreme Court, the relevant regulations are 29 CFR § 1604.10, 37 Fed. Reg. 6837.
26.
26. LaFleur, 414 U.S. 632, 640-41.
27.
27. Ibid., p. 638, lists the mandatory leave provisions. On p. 641, fn. 9, the Court noted, “The cutoff date at the end of the fourth month was chosen because this was when the teacher `began to show.' Similarly, at least several members of the Chesterfield County School Board thought a mandatory leave rule was justified in order to insulate schoolchildren from the sight of conspicuously pregnant women. One member of the school board thought that it was not good for the school system for students to view pregnant teachers, because some of the kids say, my teacher swallowed a water melon, things like that.”
31. See H. R. Rep. No. 95-948, 95th Cong., 2d sess. 4, 5, reprinted in (1978) U.S. Code Cong. and Ad. News 4749, 4752-53.
32.
32. California Federal Savings & Loan Assn. et al. v. Guerra, 479 U.S. 272, 107 S. Ct. 683, 93 L. Ed. 2d 613 (1987).
33.
33. California Fair Employment and Housing Act, § 12945(b) (2).
34.
34. Guerra, 479 U.S. 272, 280 (1987), citing the Court of Appeals in 758 F.2d 390, 396.
35.
35. Guerra, 479 U.S. 272, 287.
36.
36. Oil Chemical and Atomic Workers v. American Cyanamid, 741 F.2d 444 (D.C. Cir. 1984). For an excellent analysis of this case before the Occupational Safety and Health Review Commission at the administrative level, see Benjamin W. Mintz, OSHA History, Law and Policy (Washington, DC: Bureau of National Affairs, 1984), pp. 464-468, discussing 9 OSHC 7596 (Rev. Comm'n 1981).
37.
Ilise L. Feitshans , “The Law of Reproductive Health Protections in the Workplace after Johnson Controls,”Health Values: The Journal of Health Behavior, Education and Promotion, 16:29-38 (Jan.-Feb. 1992).
38.
38. Hayes v. Shelby Memorial Hospital, 726 F.2d 1543 (11th Cir. 1984).
39.
39. Wright v. Olin, 697 F.2d 1172 (4th Cir. 1982).
40.
40. The general duty clause is Occupational Safety and Health Act § (5)(a)(1), which requires employers to “provide employment and places of employment that are free of recognized hazards.” For detailed analysis of the general duty clause, see Stephen Bokat and Horace Thompson, Occupational Safety and Health Law (Washington, DC: Bureau of National Affairs, 1987), chap. 4. See also Ilise L. Feitshans, Designing an Effective OSHA Compliance Program (Deerfield, IL: Clark Boardman Callaghan, 1993), §§ 1:10, 1:11, 1:12.
41.
41. Oil Chemical and Atomic Workers v. American Cyanamid, 741 F.2d 444, 445 (D.C. Cir. 1984)
42.
42. 29 U.S.C. § 651 et seq.
43.
43. IUAW v. Johnson Controls, 499 U.S. 187, 200.
44.
44. In the U.S. Supreme Court, October Term 1989, No. 89-1215, Brief Amicus Curiae in Support of Petitioners by American Civil Liberties Union, p. 3, IUAW v. Johnson Controls.
45.
45. Armstrong v. Flowers Hospital, Inc., 812 F. Supp. 1183 (M.D. Ala. 1993), No. 93-6502 (11th Cir. argued 28 Feb. 1994).
46.
46. Armstrong v. Flowers Hospital, 812 F. Supp. 1183, 1188-89. According to the court's opinion, “The plaintiff stated several reasons why she would be more `at risk' than nonpregnant nurses, and, therefore, should not have been required to treat this patient. Plaintiff stated that patients suffering from the AIDS virus also often suffer from one or more opportunistic infections which take advantage of the AIDS patient's weakened immune system.... Although plaintiff was unable to articulate that pregnant persons would be more susceptible to transmission of one of these diseases than nonpregnant persons, it is clear that the implications are more grave when the health and safety of the fetus is at risk. Plaintiff did assert that she has gestational diabetes. Thus, she suffers from diabetes only when she is pregnant. However, during the term of her pregnancy, because of her diabetic condition, she has a weakened immune system and might therefore be more susceptible to transmission of infectious diseases.”
47.
47. Ibid.
48.
48. Family and Medical Leave Act (FMLA), 29 U.S.C. § 2601 et seq. (1993), Pub. L. 103-03, 103d Cong., 1st sess., 1993 H.R. 1, 107 Stat. 6. Legislative findings are included in 29 U.S.C. § 2601(a).
49.
49. “Restoration to Position.—(1) In general. Except as provided in subsection (b), any eligible employee who takes leave under section 102 for the intended purpose of the leave shall be entitled, on return from such leave—(A) to be restored by the employer to the position of employment held by the employee when the leave commenced; or (B) to be restored to an equivalent position with equivalent employment benefits, pay, and other terms and conditions of employment.” FMLA, 29 U.S.C. § 2614(a).
50.
50. “The taking of leave under Section 2612 of this title shall not result in the loss of any employment benefit accrued prior to the date on which the leave commenced.” FMLA, 29 U.S.C. § 2614(2).
51.
51. FMLA, 29 U.S.C. § 2601, Purposes of the Act, § 1.
52.
52. See protections for medical leave in 29 U.S.C. § 2612. Note also that medical leave for pregnancy is afforded to employees in many industrialized nations.
53.
53. FMLA, 29 U.S.C. §§ 2612, 2613. Section 2612 reads: “Leave Requirement. (a) In General.—(1) Entitlement to leave. Subject to section [2613], an eligible employee shall be entitled to a total of 12 workweeks of leave during any 12-month period for one or more of the following: (A) Because of the birth of a son or daughter of the employee and in order to care for such son or daughter. (B) Because of the placement of a son or daughter with the employee for adoption or foster care. (C) In order to care for the spouse, or a son, daughter, or parent, of the employee, if such spouse, son, daughter, or parent has a serious health condition. (D) Because of a serious health condition that makes the employee unable to perform the functions of the position of such employee.”
54.
54. FMLA, 29 U.S.C. § 2612(a)(1)(d).
55.
citing Theodore St. Antoine, “A Seed Germinates: Unjust Discharge Reform Heads toward Full Flower,”Nebraska Law Review, 67:60 (1988).
56.
56. As discussed by the other authors in the present volume, META would codify important limitations on the doctrine of at-will employment and create a new complaint mechanism for discussing at-will employment problems. There have been many cases with significant damages for wrongful discharge or illegal termination of employment. Section 2 limits the scope of termination to exclude termination at the expiration of an express or implied contract. The commentaries point out that the successful plaintiffs come from “middle- or upper-level management, professionals or other highly paid personnel,” not the rank-and-file workers. For example, it was noted in META, Commentaries, p. 5, that “various studies have shown that in wrongful discharge cases reaching a jury... plaintiffs won 70 percent or more of the time and averaged between $300,000-$500,000 in damages. Throughout the country, single individuals have received verdicts as high as $20 million, $4.7 million, $3.25 million, $2.57 million and $2 million.... Attorneys' fees and expenses for defending a typical wrongful discharge case add on an-other $80,000.”
57.
57. Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e; Pregnancy Discrimination Act, 42 U.S.C. § 2000e-(k).
58.
58. META, Commentaries, p. 10, defines “employer” with reference to Title VII's definition of the term.
59.
59. META, Commentaries, p. 10 indicates that META would provide pregnant employees with stronger protection than the existing law, especially for employees who lack seniority: “Since the general view is that the state law should apply more broadly than the federal law, the suggested minimum number of employees is reduced from 15 to 5 and the 20 qualifying weeks may be spread over a period of 24 months.”
60.
60. META, Commentaries p. 13, amplifying META § 3(a).
61.
61. Ibid., pp. 13-14.
62.
62. Ibid., p. 14, regarding §§ 4(a) and (c).
63.
63. META, p. 17 § 5(a). See “filing fees” in ibid., § 5(e).
