Given the frequency of women who chose to start a family while maintaining employment, it can be hard to believe that pregnancy discrimination still exists. Despite the reality of modern workplaces, discrimination against and harassment of expectant mothers actually occurs all the time. Fortunately, there are federal and state laws in place to protect women from such workplace behavior.
In 1978, Congress amended the definition of gender discrimination in Title VII by adding the Pregnancy Discrimination Act, which prohibits discrimination because of pregnancy, childbirth, or related medical conditions in workplaces that employee 15 or more workers (Pub. L. No. 95-555, 92 Stat. 2076 (1978), amending 42 U.S.C. § 2000e-(k)). The Act states that an employer is prohibited from terminating or refusing to hire/promote a woman on the basis of her pregnancy. Employers cannot discriminatorily assign or re-assign pregnant women to unfavorable positions, take away their benefits, or require mandatory leave periods.
Pregnancy by itself is not a disability because it is not an impairment (unless a related medical condition develops, e.g. gestational diabetes or another ADA-eligible disability). However, a pregnant woman must be treated the same way as other similarly situated sick or temporarily disabled workers; this means that if disabled or sick workers are entitled to receive reasonable accommodations, alternative assignments, or paid/unpaid leave, pregnant women are entitled to as well.
DISCRIMINATION IN HIRING
Employers cannot discriminate against job candidates during an interview or job placement process because they are pregnant. In addition, any gender-specific interview questions, including those related to childbearing or motherhood, are prohibited (EEOC Sex Discrimination Guidelines, 29 C.F.R. § 1604.7 (1983)). In the case King v. Trans World Airlines, Inc., 738 F.2d 255 (8th Cir. 1984), Ms. King, a mother of four, was being interviewed for an entry-level position with the kitchen department at Trans World Airlines (TWA). During the interview, Ms. King’s interviewer asked her questions about her recent pregnancy, her marital status, the number of children she had, whether these children were “illegitimate,” and her plans for future childbearing. After this process, TWA informed Ms. King that there were no openings in the kitchen department; however, within that same month, TWA proceeded to hire at least ten people for the exact same position. The Court ordered the employer to grant Ms. King injunctive relief (protection against future discrimination and another chance at the interview).
Pregnancy harassment can be physical, verbal, or written and involve offensive or unwelcome comments, jokes, gestures, etc. related to a woman’s pregnancy. Harassment in the workplace becomes unlawful when such acts become so frequent and/or severe that both a reasonable person (objective test) and the employee herself (subjective test) could perceive that a hostile or abusive work environment has been created (see Harris v. Forklift Systems Inc., 114 S.Ct. 367 (1993)). Anyone, including supervisors, coworkers, and customers, can potentially create a hostile work environment.
DISCRIMINATION UPON RETURN FROM MATERNITY LEAVE
Women who qualify for and take FMLA maternity leave must be reinstated to the same position with the same responsibilities that they had prior to taking leave. Employees and employers who aren’t covered under the FMLA must still abide by the PDA’s rule of equivalent disability treatment discussed above. In Garner v. Wal-Mart Stores, 807 F. 2d 1536 (11th Cir. 1987), a Wal-Mart department manager, Ms. Garner, took approved maternity leave. Upon her return, Ms. Garner was given the new job title of “floater,” which had far fewer responsibilities than her previous position. Especially in light of the fact that Wal-Mart had once before held open a male department manager’s position for him while he took sick leave, the 11th Circuit held that Ms. Garner had established Title VII sex discrimination because she hadn’t been given her old position back; the court awarded Ms. Garner nominal damages.
In order for a woman to show gender discrimination on the basis of pregnancy, she must demonstrate the traditional elements of prima facie Title VII sex discrimination: (1) that she is a member of a protected class [pregnant women]; (2) that she was performing her job satisfactorily at the time of her discharge or demotion; (3) that she was subjected to adverse employment action; and (4) that she was either replaced or treated differently than persons outside of the protected class. If the employee can show these four elements, then, according to the McDonnell-Douglas burden-shifting analysis, the employer must demonstrate that the reason for the adverse employment action was unrelated to gender/pregnancy. The employee can attempt to rebut this by showing that the reason provided by the employer was pretext (a false excuse or cover-up) for a discriminatory reason.
In 2011 alone, pregnant women who filed charges with the EEOC or a related local employment agency (almost 5,800 claims) received $17.2 million in monetary benefits (this figure does not include damages obtained in litigation!). If you feel you have been discriminated against for the reasons discussed above, make an internal complaint with your employer, file a charge with the EEOC, and contact an attorney.