Pregnancy Discrimination

By: Todd M. Raskin
April 3, 2006

Many women are unfairly treated either on the job or when looking for work because they are pregnant or because an employer thinks they are likely to become pregnant. Today, more than seventy million American women work, and almost three-quarters of them have children.

Pregnancy discrimination claims are increasing, up 31% from 1992 to 2005, according to the Equal Employment Opportunity Commission. During that same time, the nation's birthrate dropped 9%.

The increase in pregnancy discrimination complaints make it one of the fastest growing types of employment discrimination charges filed with the Equal Employment Opportunity Commission . . . . outpacing the increase in sexual harassment and sexual discrimination claims.

Charges of pregnancy discrimination come from a wide range of women holding entry-level jobs all the way up to senior executive positions. The increase in pregnancy discrimination cases is so important because more women of childbearing age are in the labor force. Women make up about 47% of the total labor force, according to the Department of Labor. This very same study by the Department of Labor projects that by the year 2012, women will account for more than 50% of the total labor force.

Pregnancy discrimination cases are expensive to defend. According to the United States Equal Employment Opportunity Commission, in Fiscal Year 2003, the United States Equal Employment Opportunity Commission and state and local agencies collected 12.4 million dollars from charges of pregnancy discrimination, as contrasted with 3.7 million dollars collected in 1992. These amounts do not include judgments obtained by victims of pregnancy discrimination in private lawsuits.

At the same time, more working women are having children at a later age after careers are established and at a time which represents a greater financial risk. According to a study by the Centers for Disease Control and Prevention, in the year 2000, the average American woman had her first child when she was almost 25 years old. In 1970, the average age was 21.4 years for a first birth.

The huge increase in pregnancy discrimination claims has multiple reasons. These may include:

• According to the National Partnership for Women and Families, more pregnant women are staying in the workplace rather than going on early leave. More women are working while pregnant, and they are working further into their pregnancies.
• Productivity pressures and the overall economy. The less than robust economy has forced employers to lay off workers and demand increased productivity with fewer employees left to do more work. Some employers may see pregnant workers with a pending maternity leave and the possible need for more flexible work arrangements due to family considerations as a potential liability, which decreases worker productivity.
• Pregnancy is expensive for employers. Some employers may be driven to discriminate as their health insurance costs increase.

What is pregnancy discrimination?

The Pregnancy Discrimination Act, which is a federal law, prohibits pregnancy discrimination by employers with fifteen or more employees. This means that:

• A person cannot be fired just because she is or may become pregnant.
• An employer cannot force a woman to stop working and take pregnancy leave if she is still willing and physically able to work.
• A woman cannot be denied a promotion or get demoted just because she is or may become pregnant.
• An employer cannot refuse to hire a woman simply because she is or may become pregnant.
• An employer, in most cases, cannot hire or fire a woman because she has had or is considering an abortion so long as the abortion is permitted under law.
• Employers must treat pregnancy the same way they treat any other temporary illness or medical condition.
• An employer must give a woman the same level of rights and benefits given to other workers with medical conditions that prevent them from working for a short period of time.
• Employers who cover prescription drugs for employees through a company health plan, must also cover prescription contraceptives.

Women are also protected from discrimination in employment under another federal statute, the Family and Medical Leave Act. This law allows a person the right to take up to twelve weeks of unpaid leave from employment in order to care for a newborn baby, adopt a child or foster child. Upon the employee's return to work, she has the right to the same or equivalent job. This law applies only if the employer has at least fifty employees, and the employee has worked for that employer for at least twelve months and for 1250 hours in one year. (About 25 hours per week).

Under federal law, it would be inappropriate to:

• During an interview, a job placement agency asks a welfare client how many children she has and if she is planning to get pregnant again. The welfare client says she is four months pregnant. The agency tells her to come back after she has her child and is ready to work.
• An employee tells her boss at work that she is pregnant. Her boss fires her, even though she is still able to work.
• A pregnant worker at a fast food restaurant asks her boss if she can stop lifting heavy boxes during her pregnancy. The boss says no, even though another employee did not have to lift boxes at work while recovering from surgery. The pregnant worker is forced to quit her job.
• An employee who returns from maternity leave is treated differently than other employees with disabilities or time off that return to work.

What can employers do?

Employers must be vigilant in the way in which they deal with their employees in order to avoid or minimize the likelihood of becoming embroiled in a pregnancy discrimination claim. Here are some tips:

• Document all personnel actions in writing.
• Know the law. Be aware of whether or not state and/or federal law applies to your company.
• Develop and implement personnel policies that are gender-neutral.
• Make certain that comprehensive benefits packages provide coverage for pregnancy-related issues.
• Acquire adequate liability insurance.
• Utilize human resource professionals who are well versed in the legal requirements applicable to your company and vest in them the necessary authority to implement gender-neutral employment policies.