Posted July 18th, 2019.
Decades after the passage of a federal law protecting pregnant women in the workplace, pregnancy discrimination persists.
By Robin Shulman
- Despite the passage of a law prohibiting pregnancy discrimination 40 years ago, claims of discrimination remain widespread.
- Federal laws that may affect pregnant women in the workplace include those related to civil rights, disability and family leave.
- Many states and municipalities have passed additional laws aimed at protecting pregnant women against workplace discrimination, and local laws on family leave, civil rights, and disability may also apply.
- Consider whether you might need accommodations, or even a different assignment, during your pregnancy, and how to request those things.
- If you are being discriminated against or refused accommodation during your pregnancy, consider whether to advocate for yourself or to seek legal advice.
- Understand that the climate for pregnant women in the workplace is changing rapidly, and that your voice may help.
More than 40 years ago, Congress passed the Pregnancy Discrimination Act to protect pregnant women in the workplace. The law made it illegal for employers to consider pregnancy in decisions about hiring, firing and promotion. Today it offers pregnant women the same accommodations and protections as their colleagues with other kinds of health issues or disabilities — people who are “similar in their ability or inability to work.”
Yet decades after the passage of the act, pregnancy discrimination persists. “It’s still a widespread problem,” said Dina Bakst, the co-director of A Better Balance, a national organization that promotes policies that protect workers who are juggling family and caregiving responsibilities. Pregnancy discrimination claims filed at the Equal Employment Opportunity Commission have soared over the past two decades. Tens of thousands of women have taken legal action alleging pregnancy discrimination at companies including AT&T, Walmart, Merck, Whole Foods, 21st Century Fox and even — in an indication of the pervasiveness of the problem — Planned Parenthood and other organizations built for women.
Often, women either don’t know their rights or don’t know how to assert them, especially on the timeline of a pregnancy. Some states and municipalities have passed additional laws protecting pregnant workers, so a woman seeking information about her rights as a pregnant employee must navigate a confusing web of federal, state and local laws. In some states, public conversation around new laws has served to clarify requirements for employers and led to a drop-off in discrimination claims, advocates for women say. Elsewhere, women who better understand their rights are more likely to confront discrimination. Still, bias against pregnant women in the workplace is often unapologetic.
“A lot of employers are open about their biases,” said Gillian Thomas, a lawyer with the Women’s Rights Project of the American Civil Liberties Union. “They’ll say, ‘I can’t afford to have you home, it’s our busiest time of year.’ ” Low-wage workers are more likely to be fired on the spot after telling employers they’re pregnant, according to a 2011 report by the Center for WorkLife Law, a national research and advocacy organization. Professional women often face more subtle forms of discrimination: They may be steered away from plum assignments and research opportunities, be taken off the partner track or the path to tenure and denied raises or bonuses.
Pregnancy discrimination strikes at a critical moment in a woman’s career, during a huge life change; it is the opening salvo in what can become an onslaught of discrimination related to parental leave, breastfeeding and child care. (The pay gap between heterosexual spouses widens dramatically during the two-year period beginning one year before the birth of the first child and continues to grow over the next five years, according to a 2017 paper published by the Census Bureau.) A woman’s experience of discrimination — or of goodwill and support — during pregnancy can impact her decision-making about whether to change jobs or professions, reduce her hours or quit.
For this guide, I consulted two lawyers, a human resources consultant, a researcher at an academic center on employment law, the director of a nonprofit that advocates for more family-friendly workplace policies and several women who said they experienced professional discrimination while pregnant.
Know your federal rights.
The Pregnancy Discrimination Act prohibits an employer with 15 or more employees from discriminating against a pregnant employee, including in hiring, firing, pay, job assignments, promotions, training and benefits such as leave and health insurance.
A supervisor cannot, for example, stop a pregnant woman from traveling to a conference out of purported concern for her health. The manager cannot deny a pregnant worker a promotion on the assumption that she will be less committed to her job. The supervisor cannot temporarily assign a pregnant worker to a less desirable job because of supposed concerns. All of this is illegal.
The law does not require an employer to accommodate a pregnant worker if the company is not already offering similar accommodations to other workers (for instance, someone with a heart condition). The Americans With Disabilities Act requires the employer to provide a reasonable accommodation that allows the employee to do the job, but what that accommodation consists of — more frequent breaks, for example, or a stool to sit on — varies depending on the job and the nature of the disability. A pregnant worker may not receive the precise accommodation she had sought — but the accommodation is expected to work reasonably for both employee and employer.
Federal legislators have proposed a new pregnancy anti-discrimination law, the Pregnant Workers Fairness Act, to make employers responsible for accommodating reasonable needs. Similar legislation has been proposed each year since 2012 but has yet to receive a hearing in Congress. The proposed legislation would create a new right to pregnancy accommodation from any employer, instead of only requiring accommodation if someone else at the company is already receiving it.
Another existing law, the Family and Medical Leave Act, requires an employer to offer unpaid leave to workers with temporary disabilities, including pregnancy — but it covers only employers with 50 or more employees, and the employee must have worked for at least one year, and for at least 1,250 hours over the previous 12 months. These requirements exclude nearly 40 percent of American workers.
Know your local rights.
As of May 2019, at least 25 states and five cities had passed their own laws requiring employers to provide reasonable accommodations to pregnant employees. But confusion can arise when local, state and federal laws offer different protections. When health complications arising from a difficult pregnancy trigger coverage by local disability laws, for example, multiple human rights laws and family leave laws may also come into play. A Better Balance provides a searchable database of laws in every state, and workers can also call its helpline, 1-833-NEED-ABB, or 415-703-8276 for the Center for WorkLife Law.
Consider what accommodations you really need.
Sometimes the solution is as obvious and simple as an extra bathroom or rest break, or permission to carry a water bottle on the warehouse floor. But you might need more complex changes or a new job assignment altogether.
The Center for WorkLife Law, a project of the University of California Hastings College of Law, publishes a list of typical accommodations for common medical issues during pregnancy. If you have medical needs and restrictions, bring a doctor’s note using clear, medical language. (Here’s a state-by-state guide for doctors writing the note.)
Lyndi Trischler was a police officer in Florence, Ky., when she got pregnant with her second child. The pregnancy made much about her job untenable, beginning with elements of her duty uniform. As her body changed, wearing her gun belt became painful, and her heavy bulletproof vest gave her breathing trouble and heart palpitations. Denied a desk assignment, Trischler was about 26 weeks into her pregnancy when, she recalled, “I just couldn’t physically do it anymore. I was worried about my safety, my coworkers’ safety, my baby’s safety.” She brought a discrimination claim, and the Department of Justice eventually settled with the city, bringing about a change of policy.
Women in office jobs may need different sorts of accommodations. Nilab Rahyar Tolton was a rising “superstar” in a California office of Jones Day, one of the world’s largest law firms, according to a class-action discrimination lawsuit her lawyers later filed against the company. While Tolton was pregnant with her second child, she was assigned to high-pressure cases that required overnight work and air travel at a point in her pregnancy when that was prohibited. Her doctor wrote a note saying she must reduce her workload. Yet a partner at the firm chastised her for not working hard enough and accused her of lying about her medical limitations, according to the complaint. After her parental leave, she was told to find another job.
Pregnant women struggling beyond their limits to please their employers can experience serious health consequences.
Consider advocating for yourself or seeking an advocate.
If you believe you’re being discriminated against, organizations such as A Better Balance and the Center for WorkLife Law can explain how to advocate for yourself, help you write a letter to your employers, and connect you with lawyers — usually for a fee, but often on contingency. Many states have women’s law centers, and if your income is low, a legal aid society may be able to help.
Takirah Woods was a family services worker for the state of New Jersey whose job sometimes required her to lift young children who were in state custody because of abuse and neglect. During her high-risk pregnancy, her doctor prohibited lifting, and her supervisor initially reassigned her to cases with older kids — until a human resources manager told her she had to take unpaid leave. “I felt devastated and angry,” Woods said. Her doctor told her about a state law that had recently come into effect to protect pregnant workers, but Woods’ employer wouldn’t budge, she said. She asked A Better Balance to send a letter outlining the employer’s obligations under the law. A few weeks later, the employer offered her a higher-paying light-duty position. “Women have to do their research,” she said, “and there are people who can help.” Employers concede at least as frequently as they resist change, advocates say.
Things are changing.
We are in the midst of a cultural shift with regard to the treatment of pregnancy in the workplace. More than 80 percent of women give birth to a child at some point during their working years, and more of them are working for longer periods. The law is only the first step, said Bakst of A Better Balance. “Women need to know their rights and feel like they can take advantage of the law for it to be meaningful,” she said. As they speak up, workplaces will continue to change.
In the #MeToo era, women are sharing stories. “After announcing pregnancy was transferred within office to less challenging job,” wrote one woman on Twitter. “Worked for a small business here in Florida that fired two receptionists while I was there because they were pregnant,” wrote another. “So gross.” Advocates say that sharing experiences, naming and shaming could shift public debate, but caution that making the wrong details of a problem public could later impact any future legal claim.
Many employers realize they must create family-friendly policies to attract and retain talent. And new solutions help employers cover accommodations and leave — not only for pregnancy, but also for employees caring for a parent, spouse or child, or managing their own medical or personal issues. Companies can cross-train employees to do other jobs, build contingency plans for absences into everyone’s job descriptions and add floater positions to the staff, said Cynthia Thomas Calvert, a senior adviser to the Center for WorkLife Law who also helps companies build family-friendly policies.
“Clients will say, ‘I’m still the same person. I’m still the same valued employee that I was before I got pregnant.’ It is shocking to me that employers are willing to throw away that talent,” said Kate Mueting, one of the country’s leading plaintiff attorneys on pregnancy discrimination.
Robin Shulman is a freelance journalist, a parent and the author of the book “Eat the City.”