Abstract
This article makes the case that social workers and social welfare advocates need to be aware of pregnancy discrimination law to better advocate for individual clients and for changes in the existing law. It is one piece of gender discrimination and inequity. This article reviews the current law around the Pregnancy Discrimination Act of 1978, including the recent holding in
Keywords
The Supreme Court case,
Background
Women earn between 76% and 82% of what men earn. When comparing minority women to white men, the differential in wage disparity increases (Kerby, 2012). However, interestingly, the earnings of women who do not have children tend to more closely resemble the earnings of men. Mothers are paid, on average 5% to 7% less than nonparenting mothers for each child they have (Budig & Hodges, 2010; Correll, Bernard, & Paik, 2007). This wage disparity is particularly harsh for female-headed households. Although, clearly, pregnancy alone does not account for this entire gender wage differential (part of which exists because some women temporarily exit the workforce when they have children), women often begin to experience changes in the workplace when they become pregnant. Further, there is a significant amount of research which suggests that pregnant women in the workforce and pregnant job applicants are viewed negatively by supervisors, employers, and coworkers and experience discrimination (Little, Smith Major, Hinojosa, & Nelson, 2015; Masser, Grass, & Nesic, 2007; Morgan, Walker, Hebl, & King, 2013).
Pregnant women are working and experiencing discrimination. According to the data compiled by the National Women’s Law Center, 8 of 10 women work during their last month of pregnancy (National Women’s Law Center [NWLC], 2013). In addition, about 82% of these women continue to work up until their last month of pregnancy (Gao & Livingston, 2015). In approximately half of all families, women provide either the sole or the primary source of income for their families. In low-income families, approximately 70% of women earn as much or more than their spouses (Glynn, 2014). In other words, pregnancy discrimination has the potential to affect not only women who become pregnant but also entire families who rely on their income.
Between 2010 and 2015, between 3,400 and 4,000 pregnancy discrimination complaints were filed annually with the Equal Employment Opportunity Commission (EEOC, 2016a). Between 1997 and 2011, there was a 46% rise in the number of EEOC pregnancy discrimination complaints (EEOC, 2016b). Between 2010 and 2015, there were approximately 2,000–2,500 complaints filed in state and local EEOC offices in addition to those filed directly with the federal EEOC (EEOC, 2016b). Women who file complaints with the EEOC represent a small number of those who experience discrimination and either chose to find another job or leave the workforce. These women have not been systematically counted. Further, the EEOC does not report the race and ethnicity of women filing for pregnancy discrimination, so it is difficult to know what the impact of race, ethnicity, or socioeconomic status is on pregnancy discrimination. It is clear, however, that the impact of losing one’s job is more severe for women who provide the sole financial support for their families or who are living close to the poverty line and have limited income and no savings.
History of U.S. Pregnancy Discrimination
In order to better understand the law around pregnancy discrimination, it is useful to review the court decisions that led up to the enactment of the PDA of 1978. Before reviewing court decisions, it is important to understand how the U.S. federal court system is structured and the reason that these decisions are so significant. Court decisions often help to develop and influence public policy. Decisions made by the Supreme Court become the law of the United States. There are 12 regional U.S. Circuit Appellate Courts. These are the highest federal courts below the Supreme Court and their decisions are binding on the regions in which they are made and can influence other U.S. federal courts. If the Supreme Court has not heard a relevant case, Appellate Court decisions are the law in that part of the United States for which the court is responsible (e.g., where they have jurisdiction). Therefore, it is important to understand what these courts have said about pregnancy discrimination to understand how the current law is being applied.
The first Supreme Court case to address pregnancy discrimination after the passage of Title VII of the Civil Rights Act of 1994, but before the PDA was passed was
General Electric Co. v. Gilbert (1976).
In another related case that preceded the PDA, Cleveland Board of Education v. LaFleur (1974), the Supreme Court had held that mandatory unpaid maternity leave was a violation of Due Process Clause of the 14th Amendment. In this case, the Cleveland Board of Education had a policy that pregnant teachers had to discontinue working 5 months before the birth of a child and could not return until the beginning of the following semester once the child was 3 months old with the permission of a physician. Further, teachers were not guaranteed reemployment following such leave. The court noted that “Freedom of personal choice in matters of marriage and family life is one of the liberties protected by the Due Process Clause of the Fourteenth Amendment” ( Cleveland Board of Education v. LaFleur, 1974, pp. 639–640). Further, they found the school board policy, requiring medical recertification before returning to work was “wholly arbitrary and irrational, and hence violates the Due Process Clause of the Fourteenth Amendment” ( Cleveland Board of Education v. LaFleur, 1974, p. 650). In part, as a result of the limited and somewhat unpredictable protection that pregnant women were receiving based on Title VII of the Civil Rights Act, the PDA of 1978 was passed.
Federal Statutory Protections for Pregnant Women
As noted in the introduction, pregnancy discrimination takes many forms and can have grave career implications for women, causing some to leave the labor force and others to face lower pay than their childless or male counterparts (Budig & Hodges, 2010; Gough, 2001). In 1978, the PDA, 42 U.S.C. § 2000e(k), was passed in order to try to prevent employment discrimination against pregnant women. It amended Title VII of the Civil Rights Act of 1964 which requires employers of 15 or more people not discriminate against employees on the basis of race, religion, or gender. Pregnancy was explicitly included in the PDA to ensure that women experiencing a pregnancy did not experience gender-based discrimination. Although arguably, it has improved the situation of women (who can no longer be legally fired for getting pregnant), pregnancy discrimination persists. The PDA specifies that employers who provide work accommodations to nonpregnant employees with work limitations must provide similar accommodations to pregnant employees who are “similar in their ability or inability to work.” This has been fodder for many a lawsuit. Who exactly other than a pregnant woman is similar in their ability or inability to work? Some conditions which have been included in the interpretation of this act include outright discrimination on the basis of medical conditions and disabilities related to current, past, intended or potential pregnancy, issues related to lactation, discrimination based on infertility treatment or contraceptive use, on reproductive risk, workplace harassment related to pregnancy, and disparate treatment based on medical leave policies, parental leave, or light-duty policies.
In 2008, the Americans with Disabilities Act (ADA) which provides civil rights protections for people with disabilities was expanded and clarified to note that “(D) An impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active” (42 U.S.C. § 12102(1)(2)). According to the EEOC, the ADA revisions require companies to accommodate workers who are temporarily injured and have temporary lifting restrictions as a result of something that occurred when they were not at work (29 CFR pt. 1630, App § 1630.2(j)(l)(ix)). This would seem to include limitations related to pregnancy which can temporarily disable a person on an episodic basis. However, that was not explicitly stated in the revision.
The EEOC has recently prioritized pregnancy discrimination (EEOC’s 2013–2016 strategic enforcement plan, 2013). Further, in July 2014, the EEOC issued policy guidelines for the enforcement of the PDA. In addition, between 2011 and 2014, they filed 44 suits based on pregnancy discrimination (EEOC, 2014a). The EEOC 2014 guidelines state that “an employer is obligated to treat a pregnant employee temporarily unable to perform the functions of her job the same as it treats other employees similarly unable to perform their jobs, whether by providing modified tasks, alternative assignments, leave, or fringe benefits” (EEOC, 2014b). This provision, though not clearly supported in the most recent Supreme Court decision in Young v. UPS (2015) about pregnancy discrimination, provides some leverage for pregnant women in the workplace. It is, however, not clear why pregnant women must be compared to men or other employees unless those other employees are also pregnant women.
The Most Recent Supreme Court Case Involving Pregnancy Discrimination
The Supreme Court in its 2015 decision in
The District Court found in favor of UPS. Subsequently, the Fourth Circuit found that Ms. Young could not claim that she had experienced discrimination because UPS had a rational reason to accommodate other workers including those covered by the ADA, those injured on the job, and those who had Department of Transportation (DOT) license suspensions. Pregnant workers, they claimed, were different and should be treated the same as other nonspecially classified workers ( Young v. UPS, 2013). Ms. Young appealed to the Supreme Court. The majority of Supreme Court Justices held that Ms. Young could bring file for pregnancy discrimination and sent the case back to the Fourth Circuit.
The Supreme Court held that UPS could treat people differently if they were acting in a nondiscriminatory way. The majority of justices suggested that pregnant women’s need for accommodations should be treated in the same fashion as other employees’ needs are treated. They further suggested that the EEOC guidelines failed to address how to deal with an employer who uses a variety of standards for addressing their employees’ nonpregnancy-related temporary disabilities, for example, the pregnant worker is supposed to be treated the same as others but which others? The justices further suggested that perhaps some people deserve differential treatment, such as those who are disabled but that in this case, the fact that people who had simply had their DOT licenses suspended were accommodated and a pregnant woman was not, seemed to suggest discrimination. This seems to directly contradict the EEOC guidance (2014a) which stated that pregnant women should be treated in the same manner as others who were temporarily disabled and, as noted earlier, the ADA (2008) was amended to include temporary disability.
When Young v. UPS (2015) was remanded to the Fourth Circuit, they were asked to use the following guidance to determine if Young had experienced discrimination. The PDA, the majority of the Supreme Court Justices noted “does not say that the employer must treat pregnant employees the ‘same’ as ‘any other persons’ (who are similar in their ability or inability to work), nor does it otherwise specify which other persons Congress had in mind” (at 26). Further, “disparate treatment law normally permits an employer to implement policies that are not intended to harm members of a protected class, even if their implementation sometimes harms those members, as long as the employer has a legitimate, nondiscriminatory, non-pre-textual reason for doing so” (at 26). They were, however, cautioned that the “reason normally cannot consist simply of a claim that it is more expensive or less convenient to add pregnant women to the category of those (similar in their ability or inability to work) whom the employer accommodates” ( Young v. UPS, 2015, p. 36).
Contrary to the EEOC guidance (2014a), the majority of justices seem to be indicating that there could be a reason to differentiate between the treatment of a person with a disability and a pregnant woman but that a pregnant woman must be treated the same as other nonpregnant people with the same limitations who do not fit into special categories that require additional protections, such as people with disabilities. In this way, rather than clearly supporting the EEOC (2014a) guidelines, the justices left room for future litigation and dispute about exactly what protections and accommodations pregnant women should receive in the workplace. They were, however, clear to note that pregnant women should not be given “preferential” treatment but that the company had to have a “legitimate nonpretextual reason” for treating pregnant women differently than others. In this way, the majority opinion could likely be interpreted to support many of the cases which were decided in lower courts, such as those which allowed employers to fire pregnant women for being late to work, as a result of pregnancy-related illness, as long as other ill workers were also fired for lateness. Although they did not directly address the issue of disparate impact (how a law might affect people differently even if that was not the laws intent), it seems clear from their opinion that a policy which is facially neutral but disparately impacts pregnant women could easily be upheld.
The decision in Young v. UPS (2015) is of concern because it may severely restrict the protection available to pregnant women in the workforce. Although the EEOC (2014a) has suggested that pregnancy should be considered a temporary disability when it becomes disabling to women, the Young v. UPS (2015) case made this less clear. Are there instances where a woman can be temporarily disabled by pregnancy and she should be treated differently than a worker who is temporarily disabled by diabetes or heart disease? What if a woman suffers from gestational diabetes, should she be considered a diabetic or a pregnant woman and thus accorded which type of flexibility? Should employers follow the EEOC (2014a) guidelines or the guidance of the holding in Young v. UPS (2015) when trying to decide the extent to which they are legally bound to accommodate pregnant workers? All of these questions were raised by the holding in Young v. UPS (2015).
Relevant-Related Employment Law and Implications for the Treatment of Pregnant Women
There are many other pregnancy discrimination cases which have addressed additional facets of pregnancy discrimination. Cases involving pregnancy discrimination fall into multiple categories which include, first, determining who is a pregnant woman, for example, who is entitled to be protected and therefore, falls into the class of people the law is intended to protect, what evidence is sufficient to prove discrimination of pregnant women including the temporal proximity of the pregnancy to such evidence, cases about nursing and the extent to which state law may supersede federal law with respect to protections against pregnancy discrimination. The following review provides some of the highlights of this case law.
Who Should Be Protected by the PDA?
The first pregnancy discrimination case heard by the Supreme Court following the passage of the PDA was Newport News Shipbuilding & Dry Dock Co. v. Equal Employment Opportunity Commission (1983). This case was brought by male employees whose wives were unable to get comparable pregnancy coverage to that which had been given to female employees. The court found this to be unlawful sex discrimination, because the policy was discriminatory against the female spouses as a result of their gender. Justice Rehnquist, in his dissenting opinion, suggested that the Congressional intent of the law was to protect female workers and, as a result, discrimination of female spouses fell outside of the law’s intent. In the decision, the majority acknowledged that Congress passed the PDA with the intent to include women “because of or on the basis of pregnancy, childbirth or related medical conditions” (462 U.S. 669, at 678). The implication of this is that company policies which discriminate against pregnant women, even those who are not actually their employees but rather employee spouses, are covered by the PDA to the extent that pregnant employees would be covered.
Circuit Courts have also found that the PDA includes protections for women seeking employment who are not actually pregnant but may become pregnant in the future. For example, the Sixth Circuit Court of Appeals, in Kovak v. Community Health Partners of Ohio, Inc. (2008), held that a nurse who had previously had pregnancy complications and as a result of the complications resigned from a hospital could not be denied employment on the grounds that she might again seek to become pregnant.
Sufficient Evidence to Bring a Case
In a case related to inflammatory speech, the 11th Circuit in Hamilton v. Southland Christian School (2012) found that an employer’s discriminatory speech about pregnancy and maternity leave was sufficient for the plaintiff to pursue a claim of pregnancy discrimination. In addition, in Matthews v. Connecticut Light and Power (2006), a case in which Matthews was terminated for excessive absenteeism while pregnant, as a result of childcare problems, a Connecticut District Court held that the derogatory comments made to her about her pregnancy subsequent to her supervisor learning of her pregnancy were sufficient to bring a case of pregnancy discrimination (Case No: 3:05cv226, PCD at 16). In both cases, the judges found that one need not have to show that a comparably situated nonpregnant person was treated differently in order to prove discrimination. This is very important because, given the way in which the PDA was interpreted by the Supreme Court Justices in Young v. UPS (2015), it may be difficult to ever find a comparably situated nonpregnant person since most of those people would likely fall into the category of being temporarily disabled, a group that the Supreme Court said could be treated differently if for a nondiscriminatory reason.
Temporal Proximity of Firing
In the cases of firing, the timing of the firing (temporal proximity to the pregnancy) may play a role in establishing discrimination. On numerous occasions, employers have tried to demonstrate that an employee was not fired as a result of pregnancy and therefore sought to have cases dismissed on summary judgment. In Asmo v. Keane (2006), the Sixth Circuit held that 2 months between the notification of pregnancy and the firing of an employee was sufficient to show that the firing may have been retaliatory. In this particular case, two employees, including Asmo, were terminated as a result, according to the employer, of a consolidation as well as a slowdown in the business. Those who were fired had the least tenure in the company. As a result, the company claimed, and the District Court for the Southern District of Ohio agreed, that Asmo was not fired as a result of becoming pregnant. However, Sixth Circuit Court found that Susan Asmo had presented sufficient evidence for her claim to proceed and the case was remanded to the lower court.
In another case from the Second Circuit that was factually similar to
Lastly, in a Seventh Circuit case in 1994, The plaintiff in this case did not present any circumstantial evidence … that is, either comparative or pretext. She presented no evidence about the treatment of other employees; and because of her tardiness she could not show that she met the employer’s requirements for her job, and thus she could not raise an issue of pretext. (
The Protection of Fetuses
Pregnancy discrimination cases have also been heard to determine if it was alright to exclude women from certain types of employment in order to protect fetuses. For example, in the case of
International Union, United Automobile, Aerospace & Agricultural Implement Workers of America, UAW, et al. v. Johnson Controls, Inc. (1991), the Supreme Court held that using gender as a bona fide occupational qualification, even if the policy was designed to protect fetuses, was discriminatory toward women. In this particular case, Johnson Controls’ policy excluded all fertile women who were potentially capable of bearing children from manufacturing batteries unless they could prove their inability to become pregnant. Judge Blackmun, writing for a unanimous court, concluded: Our holding today that Title VII, as so amended, forbids sex-specific fetal-protection policies is neither remarkable nor unprecedented. Concern for a woman’s existing or potential offspring historically has been the excuse for denying women equal employment opportunities. See,
Breast-feeding
Pregnant women are told to nurse by the medical establishment (American Medical Association, n.d.; World Health Organization, 2016) because it will increase the physical and developmental well-being of their children and yet, many women, particularly low-income women, are unable to do so, in part as a result of current court interpretations about gender and pregnancy discrimination. The Supreme Court recently chose not to hear a case about breast-feeding in the workplace ( Ames v. Nationwide Insurance Co., 2015). Therefore, the extent to which nursing is a protected pregnancy-related activity depends on the Circuit Court in which you reside and the extent to which nursing is considered to be covered by the PDA in that state. At the same time that lower courts are hearing cases about nursing, Section 4207 of the Affordable Care Act (2010) amended the Fair Labor Standards Act of 1938 (29 U.S. Code 207) to include a provision that allows women who work for employers who employ at least 50 people to take “reasonable breaks” to express milk for the first year of their child’s life. In addition, 27 states have laws that specifically apply to women in the workplace who are nursing (National Conference of State Legislators, 2015b). Moreover, many states have begun to pass laws protecting the rights of women to breast-feed or to pump milk at work. Still, the following review of court cases below will demonstrate that women’s ability to nurse or express milk while working has not been well protected by the courts.
In Barrash v. Bowens (1988), the First Circuit Court case about lactation, Ms. Barrash requested a 6-month leave to enable her to breast-feed her newborn. She provided documentation from her pediatrician of the need to do so, but her employer at the Social Security Administration told her that her evidence of need was insufficient and that she would be fired if she did not return to work. The Fourth Circuit Court held that breast-feeding was not a pregnancy-related condition for which the PDA protections applied because “pregnancy and related conditions must be treated only as illness when incapacitating.” The court further held that the disparate impact analysis did not apply because this policy did not treat women differently than men. A man, for example, also could not take a 6-month leave to breast-feed his child. Derungs v. Walmart Stores, Inc. (2004), a case in which a group of women, who had been required to leave Walmart or nurse in the bathroom, filed suit claiming that they had experienced discrimination in a public accommodation. Once again, this court found that nursing was not protected by the PDA.
In EEOC v. Houston Funding II, Ltd. (2013), there was a much more favorable result for nursing mothers. In this case, the Fifth Circuit Court of Appeals held that it was sex discrimination for an employer to fire someone who was lactating or expressing milk on that basis alone. In this case, Donnicia Venters asked her employer if they could find a space for her to pump milk when she returned from work following the birth of her child. At first, she was told that was not possible. When she was given a release from her doctor to return to work and notified her office that she needed a space to express milk, she was fired. In the Fifth Circuit, firing a woman because she asked to be able to express milk was seen as discriminatory.
Recently, both the Eighth Circuit Court of Appeals and the Supreme Court denied review of a pregnancy discrimination case relating to breast-feeding ( Ames v. Nationwide Insurance Co., 2015). This case was decided, at the trial level, at least in part based on the idea that men too can lactate ( Ames v. Nationwide Insurance Co., 2012). The trial court dismissed Amy Ames PDA claim without a hearing and this was upheld by the Circuit Court. In this case, Amy Ames was required to return to work at Nationwide Insurance as a claims adjuster 8 weeks after the birth of her second child at that time she needed to nurse every 3 hours. When she got to work, she was told that she had to complete some paperwork and it would take 3 days before she could be given access to the lactation room. She was directed to a wellness room which was occupied for a while. When she asked her supervisor to help her find another place to lactate temporarily, her supervisor told her to go home to her children. During her brief time at work, she was also informed that she had 2 weeks to make up all of the work that had not been done in her absence. The court held that she had no claim because she was being treated the same as every other pregnant employee and that she did not give nationwide the opportunity to fix the situation regarding lack of access to a place to pump before resigning. In January 2015, the Supreme Court denied cert to review this case leaving the Circuit Courts of Appeal to make their own decisions about the extent to which denying a woman the ability to nurse or express milk is a violation of the PDA.
Although the cases in the Eighth and Fifth Circuit are different, both involved employers who did not accommodate their employee’s desire to express milk. In the Fifth Circuit, the employer was found to be at fault whereas in the Eighth Circuit, it was the employee. The Fourth Circuit case is slightly different because, in that case, the employee requested an extended leave from work to nurse her child and was denied that leave. However, in each of these cases and the Walmart case (2004) in the Sixth Circuit, the issue of the extent to which nursing should be included as a part of the PDA was addressed. The Circuit Courts remain divided on this issue. This leaves working mothers who wish to nurse without a clear right to do so. As noted earlier, in some states, they may receive better protection than in others where they may receive no protection to nurse despite the provisions in the Affordable Care Act (ACA). This is in part because many women work in places with less than 50 employees and are therefore not included in those who are covered by the ACA and, in part, because their employers need only to provide reasonable breaks and what is reasonable is not always clear. Also, women can take breaks to express milk. Those who wish to have a relative bring the child, so that they can actually nurse the child are not protected by the ACA even if this could be done during reasonable breaks.
State Law Can Supersede Federal Law
As a result of the decision in California Federal Savings & Loan v. Guerra (1987), discrimination against women while pregnant and nursing can be protected at the state level. In California Federal Savings & Loan v. Guerra (1987), the Supreme Court held that it was alright for states to provide additional measures to prevent pregnancy discrimination over and above those provided by the PDA (1978). In this case, a woman, who worked at the California Federal Savings and Loan Association took a 4-month leave during pregnancy and when she asked to return, was told that her position had been filled and there were no alternative positions available. This case reviewed the legitimacy of the protections provided by the California Fair Employment and Housing Act Section § 12945(b)(2) which provided 4 months of unpaid leave and a guarantee that after that time a woman could, generally, return to her previous job.
Several states have laws that require employers to provide sanitary facilities for expressing milk other than bathrooms, many of which preceded the recent federal changes in the Affordable Care Act, and some of which provide women with additional protections. These states include Arkansas (2009 Ark. Acts, Act 621, HB 1552), Colorado (Colo. Rev. Stat. § 8-13.5-101 et seq., 2008), DC (2007 D.C. Stat., chap. 17-58; B 133), Delaware (S. 212, 147 GA, enacted September 9, 2014), Georgia (Ga. Code § 34-1-6, 1999), Illinois (Ill. Rev. Stat. chap. 820 § 260, 2001), Maine (Me. Rev. Stat. Ann. tit. 26, § 604, 2009), Minnesota (Minn. Stat. § 181.939, 1998, 2014), Montana (Mont. Code Ann. § 39-2-215 et seq.), New Mexico (NM Stat. Ann. § 28-20-2, 2007), New York (NY Labor Law § 206-c, 2007), Oklahoma (Okla. Stat. tit. 40, § 435, 2006), and Vermont (2008 Vt. Acts, Act 144, HB 641; 2013 Vt. Acts, Act 31, HB 99). Colorado allows women the right to express milk for 2 years following the birth of a child (Colo. Rev. Stat. § 8-13.5-101 et seq., 2008) and Maine and Vermont provide this right for 3 years after childbirth (Me. Rev. Stat. Ann. tit. 26, § 604 [2009]; 2008 Vt. Acts, Act 144, HB 641; and 2013 Vt. Acts, Act 31, HB 99). Oregon allows women 30 min paid breaks for nursing or pumping for each 4 hr of work (Or. Rev. Stat. § 653.075, § 653.077, and § 653.256 [2007]).
Both Delaware and New York have recently passed legislation that goes well beyond the federal protection for pregnant women. Delaware’s Pregnant Worker’s Fairness Act (2014) allows pregnant women to receive: reasonable changes in the workplace, including, but not limited to, making facilities accessible, modifying equipment and providing mechanical aids to assist in operating equipment, making reasonable changes in the schedules or duties of the job, temporary transfers, time off to recover from childbirth, or break time and appropriate facilities for expressing breast milk, provided that the accommodations do not impose an undue hardship on agency operations. (Delaware S. 212, 147 GA, 2014)
Implications and Conclusions
There are several implications to the case and statutory law described in this article. First, it is important to understand the ramifications of the UPS (2015) case. Pregnant women are entitled to some protections against discrimination in the workplace but these protections are limited and may largely depend on state law and lower court interpretations of federal laws. Although perhaps there should be, there is no federally required preferential treatment for pregnant women and generally this is also true at the state level. On June 4, 2015, the Pregnant Workers Fairness Act was introduced in Congress. It had been introduced in other forms in 2012 and again in 2013 (S. 1512, 2015). This law never made it to a vote in either the House or Senate. It would have provided all pregnant women in the United States with the right to reasonable workplace accommodations when pregnant. It would have prohibited employers from discriminating in hiring or other employment decisions based on a woman’s need for reasonable accommodations because of pregnancy, childbirth, or related conditions. It would have also prohibited employers from forcing employees to accept unnecessary accommodations or to take either paid or unpaid leave if reasonable accommodations could be made at work (NWLC, 2015).
Based on current law, throughout the United States, pregnant women are entitled to be treated as well as other employees who are limited as a result of a temporary health conditions, though not necessarily temporary disabilities. Pregnant women need stronger protections.
As social workers and social welfare advocates, we need to do a better job of recognizing both the existing legal protections available to clients as well as the limitations of these protections and the areas in which advocacy is needed. We need to advocate for ourselves and for our clients. We should be advocating for the reintroduction of the Pregnant Workers Fairness Act. Although pregnancy discrimination occurs across classes, it is particularly harsh for families in which the pregnant women provides the only or the primary source of financial support for the family. As noted earlier, it not only affects women during their pregnancy but can continue to impact them throughout their working career and into old age. Women will never have equality in the workforce as long as American workplaces treat them punitively for becoming pregnant and having children. Most women in the United States are in the workforce when their children are still less than 1 year of age (U.S. Department of Labor, 2013). Unless the workplace accommodates working women who are pregnant and nursing, both these women and their children will continue to be harmed. Of course, this is only one piece of a larger discussion on work life balance which includes paid parental leave and allowing for flexible work scheduling, but it is a significant issue because it is the first time that many women in the United States confront overt gender inequity and its impacts are long-lasting.
The PDA should be amended to include affirmative rights like those suggested in the Pregnant Worker Fairness Act (2015). We also need state and federal insurance-based policies which shift the burden of pregnancy and nursing off of mothers and employers and allow the burdens of both to be shared by the broader society, not just women and their children. In other words, we need more than the 12 weeks of unpaid leave, the FMLA currently provides to those who work for employers employing at least 15 workers (FMLA, 1993). If pregnant women want to temporarily work part time or stop working as a result of pregnancy-related health concerns or be able to nurse, neither these women and their families nor their employers should be penalized. These are a few ways to ensure that child bearing will not cause women to experience employment discrimination. There is some evidence that laws which burden employers may actually increase discrimination in the workforce by making the employment of women in their child bearing years less appealing to employers (Blau & Kahn, 2013; Miller, 2015). Shifting the burden off of employers may help reduce this type of discrimination too.
Footnotes
Declaration of Conflicting Interests
The author(s) declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.
Funding
The author(s) received no financial support for the research, authorship, and/or publication of this article.