When Congress passed the Pregnancy Discrimination Act of 1978, it sent a message to employers that it wasn’t okay to continue discriminating against women because they were pregnant, could become pregnant or because of medical conditions related to pregnancy.
Looking at pregnancy discrimination statistics over the past 37 years, it’s clear that countless working women have experienced this form of discrimination, and the Equal Employment Opportunity Commission has in recent years been active in its fight for the rights of pregnant women.
At the risk of stating the obvious, pregnancy is here to stay. In fact, according to a recent Gallup poll nearly 90% of US adults either have children or want to have children. And according to the National Women's Law Center 75% of American woman will be pregnant and working at some point during their life. That makes this an issue that affects a massive percentage of your employee base.
Pregnancy Discrimination Still Very Real—and the Offenders Might Surprise You
Unfortunately, pregnancy discrimination at work remains a very real issue for women. Even in today’s workplace, pregnancy carries with it a host of challenges for female employees. And, surprisingly to some, it’s not always the older generation of workers who are causing issues. Young colleagues, female coworkers and managers are sometimes the worst offenders.
One of the most vexing challenges is that, unlike other forms of discrimination, insensitive comments, poor decisions, and mistreatment can occur at the hands of those who act without malicious intent. Rather, offenders may be acting on subconscious bias, baseless assumptions or ignorance that what they are saying or deciding actually violates the law. In some instances they wrongfully believe that what they are doing is best for the employee and best for the organization.
Ask an employee or manager about their honest reaction when a woman announces that she is expecting and you are very likely to hear some outlandish and offensive examples of pregnancy discrimination in the workplace, such as:
- “She will no longer be as committed to her job”
- “I’ll have to pick up her slack”
- “She’s probably just going to quit after the baby is born”
- “The company won’t be able to count on her for late nights or travel”
- “Her attention will be divided now and it will negatively impact her productivity”
Ask the same group of employees about their reaction when a male colleague announces he is going to be a father, and I can all but guarantee the responses will be different.
Women Still Have Cause to Worry That Pregnancy Will Hurt Their Careers
We all have biases—it’s just that some of these biases are incredibly damaging and, when acted on, unlawful. In Darlena Cunha’s recent article in The Atlantic, “When Bosses Discriminate Against Pregnant Women,” she references some sobering research about what it means to be pregnant in the American workplace:
“According to sociologist Shelley Correll, mothers are more heavily scrutinized than both women without children and men with or without children. Her research shows that motherhood results in biased evaluations of both competence and commitment to a job, that women with children can do the exact same quality work as those without children, and it will be perceived as less well done.”
Trust me, your female employees are well aware of these hurtful stereotypes and the unfair standards that are applied to them—and they do worry about discrimination in the workplace and how they will be perceived once they make the announcement at work.
Even the most successful women have faced this problem—wildly successful YouTube CEO and soon to be mother of five (she’s currently eight months pregnant) Susan Wojcicki dealt with speculation and assumptions from colleagues that having a baby meant quitting work.
Is Your Corporate Culture Undermining Your Organization’s Commitment to Being “Family Friendly”?
As companies strive to be seen as “family friendly,” their efforts sometimes fall flat. Maybe the organization has an unwritten rule that women shouldn’t really take more than a couple weeks off after having a baby, or that men really aren’t allowed to take paternity leave (even though most have a legal right to do so under the FMLA).
View our complimentary webinar, Emerging Workplace Behavior Risks: Legal Implications for Your Organization, to stay ahead of the curve on the latest trends and workplace behavior risks.
Or, perhaps pregnant women are forced out of their jobs while pregnant because they have temporary work restrictions. And for pregnant women who develop such temporary work restrictions, well, they can find themselves between a rock and a very hard place.
Case in point, UPS employee Peggy Young.
U.S. Supreme Court Will be Weighing In on Pregnancy Discrimination: Young v. United Parcel Service
In 2006, Peggy Young, a driver for United Parcel Service, told her supervisor that she was pregnant and that her doctor wanted her to limit anything she lifted to fewer than 20 pounds. Although Young’s route included carrying only envelopes and small boxes, her job description required her to be able to lift 70 pounds.
At the time, UPS refused to accommodate Young with a light-duty assignment or remove any of her duties—because her “disability” was acquired outside of the workplace (so it did not fall in the scope of their workers’ compensation program), and because pregnancy was not a disability under the Americans with Disabilities Act (it was considered only a temporary condition).
Instead (and although she insisted she was perfectly able to continue working) she was forced to take unpaid leave, and lost her health insurance—a financial and emotional hardship for Young.
Young sued UPS for back pay and damages claiming the company violated the Pregnancy Discrimination Act. And after two lower courts ruled against her, the Supreme Court took up the case on Dec. 3.
(And although UPS continues to argue that the law did not require an accommodation for Young, starting in January an updated policy will provide light duty to pregnant workers.)
While the high court tussles over the true meaning of the Act (a decision isn’t expected until the summer of 2015) and whether employees like Young are entitled to temporary workplace accommodations, a media firestorm has ensued around the rights of pregnant women in the workplace.
Determining Reasonable Accommodations for Pregnant Employees in the Workplace: Many State and Federal Laws Come Into Play
Whether a female employee with pregnancy related limitations is entitled to a reasonable accommodation or not hinges on a couple of important laws.
- Pregnancy Discrimination Act (PDA)
- The Americans with Disabilities Act (ADA) and subsequent amendments under the ADAAA
- The Family and Medical Leave Act (FMLA), and
- Applicable state laws (see below)
Honestly, women today have a better chance of getting help from their employer than Young did in 2006. That’s because in 2008 the ADA was amended by the ADAAA; the definition of the term “disability” was expanded to include even disabilities that could be temporary in nature. As a result some of the severe pregnancy-related medical conditions are treated as a disability. But pregnancy itself is not a disability.
While the right to an accommodation is still limited, there are efforts at the Federal level to help pregnant women continue working.
- In July of 2014, the EEOC issued updated guidance on the PDA taking the position that “pregnant employees are entitled to accommodation under both the PDA and the ADA.” EEOC Guidance sheds light on how the EEOC interprets and enforces the law; but while courts give deference to guidance they are not required to follow it. Littler did a great piece summarizing the guidance.
- Federal legislation (The Pregnant Workers Fairness Act) has been introduced to guarantee such accommodations; but the success of this bill is seen as unlikely and little action has been taken on it.
- The U.S. Supreme Court has heard oral arguments in the Young case; their interpretation of the PDA could expand or limit the rights of pregnant workers.
As for state laws, we are seeing a growth in the number of states that recognize the importance of protecting and accommodating pregnant women. As of December 2014, over a dozen states, the District of Columbia, and a number of cities have passed laws requiring employers to provide reasonable accommodations for pregnant women.
Ensuring Your Organization Avoids Pregnancy Discrimination—and Fosters a Strong Corporate Culture of Ethics and Respect
For all employers, it’s important to:
- Evaluate the “true” downside of broadly providing a temporary accommodation to an employee who needs it (pregnant or not). From a recent podcast on The Takeaway: “According to available research, providing accommodations for workers that make it possible for individuals to stay on the job actually increases retention rates, increases morale, and productivity.”
- Consider the negative message you could be sending with your policies. If your policy is to be highly restrictive/legalistic about the support you will provide during and after pregnancy, consider the impact on the morale of almost all of your female employees.
- Evaluate your leave and accommodation policies and procedures; make sure they are legally compliant with state and federal law.
- Your policy must reflect obligations under state law and expanded rights under the ADAAA; some pregnancy related conditions may qualify for an accommodation under the ADA.
- Don’t create any absolute or blanket rules that say we won’t ever accommodate pregnancy related medical limitations.
- Be fair and consistent—if you won’t accommodate pregnant employees with minor temporary restrictions, don’t provide temporary light duty assignments or other accommodations to employees (male or female) who have other temporary non-work injuries. This may mean no relief for those who have broken arms or legs, vasectomies, ankle sprains or who break their nose, for example. They all need to tough it out or lose their job (if that’s your position for pregnant employees).
- Train your managers. Biases do run rampant when it comes to pregnancy, and the laws have and will continue to change. Managers must receive training that helps them understand the limits and employee rights.
- Don’t peddle false hope. If you claim to be family friendly, then be family friendly. Don’t say you are family friendly, and then choose to treat the vast majority of your female employees as if pregnancy makes them useless or less valuable. You will make a lot of employees very upset and leave them second-guessing your commitment to them and the culture of your organization.
“Don’t say you are family friendly, and then choose to treat the vast majority of your female employees as if pregnancy makes them useless or less valuable. You will make a lot of employees very upset and leave them second-guessing your commitment to them and the culture of your organization.”
Carefully Consider the True Impact of Your Organization’s Stance on Pregnancy Accommodations on your Corporate Culture—and on Employee Morale
Whether a pregnant employee is entitled to an accommodation is subject to a review of the employee’s rights under the legal alphabet soup I’ve listed above—and for now, usually hinges on the employee’s ability to supply proper paperwork of a need for an accommodation.
If you choose for now to only provide the narrowest (and legally required) accommodations to pregnant women who request them, make sure your managers are fully trained, and employees understand your position so they are not surprised when you tell your pregnant employee she can no longer report to work.
However, if you’re following only the letter of the law, know that you may be sending a strong message to your female employees. That message could sound like this: “Once you become pregnant, we no longer feel it is important to invest in you or treat you the same way we have in the past.” The risk in this kind of a policy is the possibility that you are not fostering the kind of culture you want to cultivate—and that you could be alienating and demoralizing a significant percentage of your workforce.