Pregnancy Discrimination Grows

By Nancy Hatch Woodward Jul 1, 2005
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HR Magazine, July 2005 With a little planning, you can avoid being included in the growing number of pregnancy discrimination suits.

It should have been a joyous time: Mailyn Pickler of Mesa, Ariz., was pregnant. But about a week after she shared her good news with her employer, Berge Ford auto dealership, the company issued a stunning response. She was fired.

“They said they needed to be proactive rather than reactive,” Pickler explains, “in case I ended up throwing up or cramping in one of their vehicles. They said pregnant women do that sometimes, and I could cause an accident, which might mean a lawsuit against them.”

On the “bright” side, her employer assured her that she could return to work … after the baby was born.

Losing her job as a representative in the service department meant that Pickler also lost her health insurance. “I just cried when they told me,” she remembers. “I was 19 years old, out of a job, no insurance, and it was right before Christmas. It was just one thing after another.”

She may have been young, but Pickler knew that she wasn’t being treated fairly, so she contacted the Equal Employment Opportunity Commission (EEOC) office in her state. The EEOC filed charges on her behalf, and the case was settled out of court for $70,000.

Pickler’s termination is far from unusual. In fact, since that unpleasant day in 2001, the number of pregnancy discrimination claims, which was already on the rise, jumped an additional 5 percent by 2004.

Fast-Growing Discrimination

Despite the nation’s declining birth rate, pregnancy discrimination cases filed with the EEOC increased 39 percent between 1992 and 2003, making it one of the fastest-growing types of employment discrimination charge filed with the agency, outpacing even sexual harassment and sex discrimination charges.

Not only have more pregnancy discrimination cases been filed with the agency, but the number of cases where cause was found also has increased. And the amount collected in these cases jumped threefold from 1992 to 2003.

“We recover about $12 million or $13 million a year through litigation,” says David Grinberg, a spokesman with the EEOC in Washington, D.C., “and that is in addition to what we recover in the pre-litigation process where most of the charges are settled.”

(In 2004, the percentage of pregnancy claims settled reached 15.6 percent—it’s highest total since the EEOC started tracking such results in 1992.)

Grinberg says that more than half of the charges filed allege illegal or improper termination. Other frequent causes include imposing improper restrictions on the amount or type of work pregnant workers can do, or on their ability to take maternity leave.

Graph 1 

More than half of the filings came from the service and retail industry, a trend that has held steady since the early 1990s.

The Washington, D.C.-based National Partnership for Women & Families, a nonprofit education group that advocates fairness in the workplace, notes that many cases involve obvious discrimination, such as the kind experienced by Pickler.

But pregnancy discrimination also can take a more subtle form, says Jocelyn C. Frye, the organization’s director of legal and public policy. An example might be when “a woman who has gotten a lot of good reviews and is on a managerial track suddenly is moved into some other type of job.”

Reasons Are Multifold

The upswing in pregnancy discrimination suits may be attributed to a variety of factors.

Certainly one factor is that the number of women in the workplace has risen over time. According to the U.S. Census Bureau, in 2004 nearly 60 percent of women 16 and over were in the workforce. In addition, women are projected to account for more than half of the increase in labor force growth between 2002 and 2012, according to the U.S. Department of Labor.

Another factor is that women are more likely to continue to work after becoming pregnant. A 2001 Current Population Reports notes that prior to 1978, the year that the federal Pregnancy Discrimination Act (PDA) was passed, the majority of pregnant women quit their jobs; by the early 1990s, less than 27 percent of pregnant women stopped working.

The Family and Medical Leave Act (FMLA) also has played a role, says Jennifer Long, a senior associate in the Chicago office of Baker & McKenzie LLP, an international legal services firm. “Prior to the FMLA being passed in 1993, pregnant women weren’t as aware of their rights,” she notes. “With the FMLA, most women in the workforce are aware, at least to a certain degree, that at a minimum they are entitled to 12 weeks of unpaid leave if they meet the minimum requirements to be eligible. So, the increase we are seeing is being charted from that time period.”

In addition, victims may have more incentive to sue today because women’s paychecks are playing an increasing role in the household budget. “Families need the income, not only during the pregnancy but also after the baby is born,” Long points out. “And that’s not just in single-parent households, either.”

Stereotyping also plays a significant role in pregnancy discrimination. Employers often believe that pregnant women aren’t able to perform their job duties as well as other workers, or that once they become mothers, they will want to work fewer hours and won’t be as committed to their jobs.

According to Michael J. O’Brien, a trial attorney in the EEOC’s New York office, the agency is seeing more of this latter type of discrimination. “Though this kind of discrimination has been around,” he says, “it has become more prevalent over the last five or six years.”

And the actual extent of pregnancy-related discrimination could be more pronounced than the numbers show because, as Long points out, women at the professional level or above are often reticent to file claims. “They worry about their reputation in the workforce,” she says, “which may follow them and impact their future abilities.”

She believes women at the lowest job levels may be treated worse, however, because “you may have lower-level managers who are not as in tune with the legal requirements for dealing with pregnant women.”

The Law

The PDA was enacted in 1978 as an amendment to Title VII of the Civil Rights Act of 1964. The PDA essentially requires employers to treat pregnant women the same as nonpregnant persons, explains Peter Petesch, a partner in the Washington, D.C., office of Ford and Harrison LLP, a national labor and employment law firm.

“It does not require preferential treatment for pregnant employees,” says Petesch. “There is no right to a reasonable accommodation, such as a change in job function or time off, other than under the Family and Medical Leave Act.”

But, Petesch notes, if an employer would make such accommodations for another employee—say, someone who had been in a traffic accident and was temporarily disabled—then the employer should provide a pregnant worker with similar appropriate accommodations.

The PDA is not the only regulation employers must consider. Title VII also offers protection against pregnancy discrimination and applies to companies with 15 or more employees, says Long. “Then you have the FMLA, which covers employers with 50 or more employees, but has several requirements before someone falls under its protection. Add to that state laws, which may provide for different rights and benefits, and no wonder employers can become confused.”

Robert Steindler, SPHR, director of employee services for Independence Air Inc., headquartered in Dulles, Va., says it is imperative to pay attention to state laws. His company’s employees work in more than 46 locations in 25 states—some of which offer employees more rights than federal laws.

The company has had only one pregnancy discrimination charge brought against it, and Independence was able to defend itself because of its consistency in policies on how to deal with leave or light work assignments for all temporarily disabled employees.

Navigating Through

Steindler’s approach is one that all employers should emulate. As complicated as it may seem to traverse the maze of laws and regulations, avoiding pregnancy discrimination suits is not that difficult if employers abide by one simple principle: Treat pregnant workers the same as any other employee with a temporary medical condition.

For example, Long says that if you would give an employee who recently suffered a heart attack time to sit down for 15 minutes every few hours, then do the same for a pregnant woman who may need a similar accommodation.

The best place to start is with your temporary disability plan. Create one policy to cover both pregnant workers and temporarily disabled employees, and communicate this policy to employees. The policy should spell out what options are available to employees, including short-term disability and/or FMLA leave.

At Doble Engineering Co. in Watertown, Mass., all temporarily disabled employees can take eight weeks of leave at either 100 percent of salary for exempt employees or 75 percent of wages for nonexempt workers, says Maria Ferreira, an HR representative for the company. The company also offers flextime and the opportunity for employees to change their status from full time to part time, if the position permits it. Whenever possible, Doble “offers that option to all of our employees,” explains Ferreira.

The company also makes sure to inform employees about their rights under the FMLA and about any other leave and options available to them. › Next, experts recommend, take a look at attitudes in your workplace. “It’s important to get at the underlying root causes of discriminatory conduct,” says Frye. “There are often stereotypes that employers may not even be aware of.”

Employers also need to be aware that the PDA protects women from discrimination if they had or are considering having an abortion, says Petesch. “There are workplaces where decision-makers may have an issue with such a choice, but they cannot discriminate against that employee, even if they disagree with her.”

Training Is a Must

Because of the plethora of stereotypes and confusion about the PDA, it’s important to train managers on both topics.

Dialogue is key, says Steindler. “Training is very important, but it’s also imperative that managers know they can come to you and ask questions, whether about the law or concerns they may have about handling a certain situation,” he says. “Having an environment where dialogue is encouraged is very important.”

He cites Independence Air’s efforts to dispel stereotypes about pregnant women. “It’s got to be part of your corporate culture that you respect all of your employees,” Steindler explains. “When it comes to stereotypes, we try to look at the groups where those stereotypes might be more strongly held—maybe in our frontline jobs that are more physically demanding. We then work very closely with them, assigning employee relations specialists who go out and establish relationships with employees and management before there is a problem. It’s much easier to overcome stereotypes on a one-to-one basis.”

Managers need to know that healthy pregnant women are capable of continuing with their work most of the time, says Dr. David Adair, assistant professor and director of maternal/fetal medicine for the University of Tennessee in Chattanooga and Knoxville. “They can do pretty much anything that doesn’t make them hurt.”

Some things pregnant women should watch out for include standing for prolonged periods of time, performing repetitive motions, doing heavy lifting or being exposed to chemicals, but Adair suggests that most restrictions can be handled with a little common sense and some simple accommodations. Even flying on today’s pressurized commercial airliners poses no threats for pregnant women, as long as they get up and move around periodically.

When determining if an employee can continue to do her job, it is best to leave that up to her and her physician. Adair believes that working can be a healthy activity for most pregnant women.

“Work can be therapeutic,” he explains. “It keeps you focused and keeps you involved in meaningful activity. There is no reason to put someone out of work because she is pregnant.”

Subpar Employees and Layoffs

Sometimes, problems arise when a pregnant employee has not been meeting performance expectations. Again, says Petesch, treat her as you would any other employee and document any performance deficiencies. Discuss the situation with the employee, come up with a job improvement plan and try to solve the problem.

If, however, you were dissatisfied with this employee’s work before she was pregnant and planned on firing her but had not yet documented any problems, it would be risky to take adverse action against her while she is pregnant or on leave.

The same principles apply to layoffs. If you plan to lay off junior employees and a pregnant worker falls into that category, she can be laid off. Just remember, says Petesch, that you can’t make the pregnancy a factor in the decision-making, nor can you hold it against her that she is taking job-protected leave under the FMLA.

Respectful Communication

Managers also should receive training on what is appropriate to say and do when dealing with pregnant employees. For example, they should feel free to congratulate an employee when she announces she is pregnant and to express happiness and a willingness to be of assistance.

They also should not be afraid to mention whatever applicable leave policies may come into effect or to advise the employee to consult the employee handbook or talk with the HR department to help determine next steps.

However, managers should avoid making inappropriate comments about pregnancy or childbirth in the same way they should avoid making inappropriate comments regarding sexuality, race or religion.

If managers cross the line and say or do something offensive, act immediately to set things right, warns Roxanne Conlin, a litigator in Des Moines, Iowa, and former state assistant attorney general. Don’t try to defend the indefensible, she says. And don’t try to save a bad supervisor; save the good worker instead.

Nancy Hatch Woodward is a freelance writer based in Chattanooga, Tenn., and a frequent contributor to HR Magazine.

Hiring Pregnant Workers

When hiring, never inquire into any pregnancy-related conditions or a woman’s intention to have a family. Doing so could suggest that you are judging the applicant on factors unrelated to the job’s skill requirements, says Jennifer Long, an attorney in the Chicago office of Baker & McKenzie.

You can, however, focus on the job duties, availability dates and any anticipated intense workload time frame.

Employers also may ask when the employee will be available to begin work. And, if the position has a busy season, such as an accounting position around tax time, you can explain the requirement of the job and ask if the applicant would be able to fulfill those requirements.

“But you should be asking the same thing of the middle-aged man who also applied for the position,” says Long.

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