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This Is What Discrimination Against Pregnant Workers Looks Like

By Bryce Covert on February 28, 2014 at 12:51 pm

"This Is What Discrimination Against Pregnant Workers Looks Like"

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Employers frequently vilify pregnant workers and rely on stereotypes in order to justify firing them, according to an analysis of discrimination lawsuits.

Researchers Reginald A. Byron of Southwestern University and Vincent J. Roscigno of The Ohio State University looked at closed case sex-based discrimination case files from the Ohio Civil Rights Commission between 1986 and 2003, plus an extra handful from 2007 to 2011. They specifically looked at those that had been “verified,” or were deemed to have a preponderance of evidence suggesting discrimination really had taken place.

They write that “our data reveal that cultural stereotypes and statistical discrimination are an important part of the inequality that pregnant women experience.” Employers painted the fired pregnant workers as undependable, despite not holding other employees to the same standards; claimed that an employee quit by virtue of the fact that she wouldn’t take a downgraded position; invoked seemingly neutral leave policies that ran afoul of discrimination laws or penalized pregnant workers; and invoked “business reasons” for letting these employees go. “Although current legal protections should ideally keep pregnant employees from being unjustly fired, the findings in this article suggest significant limitations and persistent vulnerabilities,” the authors write.

The most commonly used tactic, called upon by about 60 percent of employers in both time periods, was pointing to poor performance or attendance or claiming that a worker voluntarily quit. “Performance, in fact, accounted for around 30 percent of employers’ justifications for terminations,” they write, true for both female and male managers. But this feedback usually didn’t surface until shortly after pregnant workers informed their managers of their situation — 75 percent of the time plaintiffs said that’s when they started experiencing differential treatment.

The researchers note that in these cases, “women were compared to themselves before they were pregnant.” For example, Alicia Green, a sorter for a shipping company in 1995, told her employer that she was pregnant, to which he told her not to come to work anymore and alleged she wouldn’t be able to lift 50-pound mail bags, even though she had no restrictions from her doctor. “[A]brupt terminations of pregnant women may be influenced by assumptions about their future selves—assumptions that portray these women as moving even further away from the ideal unencumbered worker,” the researchers note.

About 15 percent tried to paint pregnant workers as undependable thanks to poor attendance or being late too many times, but in these cases, other workers weren’t held to the same standard. In 1993, Melissa Eaton was fired, her employer said, for too many absences in her first six months and showing up late. Yet investigators found “there is no evidence that Melissa Eaton received any written reprimands regarding her alleged poor performance or attendance.” Meanwhile, a male coworker got several such reprimands but wasn’t fired.

Employers also claimed that women had basically quit when they wouldn’t take a downgrade in their positions. This justification may be coming into vogue, as it was used less than 10 percent of the time between 1986 and 2003 but more than a quarter of the time between 2007 and 2011.

Beyond painting pregnant workers as lousy employees, in nearly 20 percent of the cases “managers invoked and amplified seemingly neutral, meritocratic leave policies as a way to dismiss pregnant employees, despite protections arguably afforded by law,” the authors write. They appealed to the company’s policies or standard practices, such as not allowing any leaves of absence, only giving leaves for work-related illnesses or injuries, or work history requirements for granting leave, which were found to run afoul of equal rights laws. Another 10 percent sought to appear neutral by invoking “business needs, profit, and efficiency,” but the author’s deep look at these cases revealed that this excuse “was often a pretense for pregnancy discrimination.” In many cases, employers claimed to be restructuring but in fact hired others for the fired person’s position. In others, they said it would be too costly to hire a temporary replacement. Even worse, some simply said having a pregnant body around would bring a disruption to the space or to customer satisfaction.

The authors note how widespread a problem this is: more than 40 percent of gender-based cases about discriminatory hiring are related to pregnancy, which means pregnancy may be a widespread reason women are being fired. It’s also something that is more likely to impact women in low-wage jobs: more than 45 percent of women who filed complaints about being fired while pregnant were in low-wage service sectors, compared to 31 percent in the high-wage sectors and zero in the public sector, where there are often more protections.

And while this blatant discrimination is relatively widespread, more subtle forms are also commonplace and are more likely to impact low-wage workers. More than a quarter million women are denied requests for an accommodation at work so that they can stay on the job while pregnant, such as switching to duties other than heavy lifting, taking more breaks, or changing schedules so they can get health care. Forty percent of low-income workers in particular can’t decide when they take their own breaks. This has had severe consequences for many women, who have experienced miscarriages after continuing to do heavy work or suffered financial hardship when they were forced onto unpaid leave or made to leave their jobs altogether.

While the cases the researchers examined were well on their way toward getting a positive outcome for the person who was fired, it’s worth noting that many women may not have the time or resources to bring a complaint, even if they experience these situations. And in the situation of women who are pushed out because they can’t get an accommodation, employers may be on the right side of the law. That has begun to change, however, with new laws that require adapting to the needs of a pregnant worker so long as there is no undue hardship eight states and New York City.

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