Understanding pregnancy discrimination

— By Sarah Webb

Peggy Young was working part-time as a delivery driver for United Parcel Service in 2006 when she became pregnant. Though her job description required that she be able to lift 70 lbs, she could lift no more than 20 lbs during her pregnancy. She asked UPS for accommodations, either temporary desk work or assistance lifting heavy packages. UPS argued that Young didn’t meet their criteria for light duty and required her to take unpaid leave. In 2008, she filed a pregnancy discrimination lawsuit, which was heard by the Supreme Court in 2014.

More than 50 years ago, employers in the United States could fire a pregnant employee without any legal repercussions. But Title VII of the Civil Rights Act of 1964 and the 1978 amendment, the Pregnancy Discrimination Act, and subsequent laws provide legal protection against discrimination on the basis of pregnancy. In 2013, nearly 60 percent of mothers with children or infants were working. But even though most women with children remain in the workforce, complaints to the Equal Employment Opportunity Commission alleging pregnancy discrimination rose 65 percent between 1992 and 2007, according to a report from the National Partnership for Women & Families, a non-profit organization in Washington, DC. The problem is most acute for lower-income, less-educated women, particularly those who do physical labor on an hourly basis, says Michelle D. Deardorff, head of the department of Political Science & Public Service at the University of Tennessee at Chattanooga.

Deardorff first became interested in the issues surrounding pregnancy more than 20 years ago while she was teaching at Millikin University in Illinois. Teaming up with organizational psychologist, Jim Dahl (now at the University of Illinois), they began reading and analyzing court cases of pregnancy discrimination at a nearby law library.

In those early days, Deardorff remembers reading one case of a woman who worked behind a desk at an auto dealership. When she told her supervisor that she was pregnant, he threw the want-ads in her face and said, “Pregnant chicks get fat.” That type of story cemented the importance of the project, she says.

Over the last 20 years, Deardorff and Dahl  combed through pregnancy discrimination lawsuits, coding information about those court cases and analyzing them to better understand the employment discrimination that pregnant women face. The two have teamed up to write the book, Pregnancy Discrimination and the American Worker (Palgrave Macmillan, 2016).

Unlike that auto dealership case, most cases of pregnancy discrimination are more subtle, Deardorff says. Supervisors might report that the pregnant employee is not performing well on the job. But those performance reviews might be inconsistent with earlier favorable work evaluations or interviews with colleagues that describe the same employee’s work in glowing terms before the pregnancy was announced.

In the early days of pregnancy discrimination, most cases were brought by highly educated professional women such as lawyers and doctors. But lower income women in more physical jobs such as manufacturing, nursing, and food service are disproportionately affected by pregnancy discrimination, according to Deardorff and Dahl. Out of more than 900 cases, more than 63 percent were filed by women in hourly labor or lower management positions that didn’t require a college degree. Employers have a greater financial investment in the recruitment and training of salaried employees, Deardorff says, while hourly workers are more likely to be viewed as “disposable,” she says. These women also don’t have the same financial resources to bring a lawsuit, she adds. So these cases could represent the tip of the iceberg.

Pregnancy presents a challenge for employers as they try to develop fair and equitable workplace policies. Title VII of the Civil Rights Act of 1964 “prohibits employment discrimination based on race, color, religion, sex and national origin.” In 1978, Congress tacked on the Pregnancy Discrimination Act, which formally made pregnancy discrimination a form of gender discrimination. “Title VII means treating similarly situated people similarly. Men and women are supposed to be treated alike except in the few places where they can’t,” Deardorff says.

Because men can’t bear children, pregnancy is one of those special cases. Historically the courts haven’t interpreted the law as requiring that companies accommodate pregnant employees, Deardorff says, just that they treat all employees in the same way. Therefore if a man had a heart attack or a woman became pregnant, both might be fired because they couldn’t fulfill the requirements of the job. Many companies gradually developed policies, like the one in place at UPS in 2006, that required employees to take unpaid medical leave unless they had a work-related injury. But such policies have disproportionately harmed pregnant women, she says.

In 2015, the Supreme Court decided in favor of Young. Although UPS had already changed their workplace policies to accommodate pregnancy, the decision means that other employers won’t automatically be able to use equal treatment to defend corporate policies that penalize women for becoming pregnant, Deardorff says. Their ‘get out of jail free’ card has been taken from them.

Going forward, employers are moving toward policies that focus on  accommodating pregnancy, using the model of the Americans with Disabilities Act, says Jim Dahl of the University of Illinois. That law though not focused on pregnancy, passed in 1990, supports “reasonable accommodations” in the workplace. “There’s now more of an expectation that there’s a conversation between the employer and the pregnant employee,” says Dahl. “That’s the good news for both employers and for employees so that they can think about ways that they can work together in situations where there might be a conflict between one’s pregnancy and one’s work.”

Such conversations are important but can sometimes be a little awkward. In her previous job, Deardorff supervised an administrative assistant who had a difficult pregnancy.  This employee could no longer bend over to unlock a glass door to the office because the lock was positioned next to the floor.  Though the employee was initially reluctant to ask, the accommodation turned out to be simple, Deardorff says. Deardorff obtained a key to a different door with a more convenient lock. But finding a solution was a two-way street: her employee needed to ask and she was willing to help.

“This is where most workplaces are headed,” Deardorff says.