Under current law, pregnant workers are supposed to be protected from being fired, turned down for employment, or otherwise discriminated against just because they’re pregnant. But it keeps happening anyway, at an increasing rate. So on Monday, the Equal Employment Opportunity Commission issued new guidance for employers, the first comprehensive update since 1983.
The EEOC confirms that people who are pregnant or recently gave birth have to be treated the same as others “in their ability or inability to work.” That means that if other workers are offered light duty or leave if they can’t lift heavy objects, pregnant workers have to be offered the same. “Similarly, pregnant employees may require other kinds of workplace adjustments similar to accommodations provided to individuals with disabilities, such as permission to take more frequent breaks and to keep a water bottle at a workstation where an employer generally prohibits this practice…or permission to use a stool to carry out job functions generally performed while standing,” it says, assuming these changes would be offered to employees who needed them for other reasons.
None of this is about new laws. In fact, it all relates to two old ones: the Pregnancy Discrimination Act (PDA), which was passed by Congress in 1978, and the Americans with Disabilities Act (ADA), enacted in 1990. The PDA amended Title VII of the Civil Rights Act to make it clear that discrimination that’s based on pregnancy, childbirth, or related medical conditions counts as form of sex discrimination. And while pregnancy isn’t a disability, pregnant people are still protected by the ADA’s requirements.
Yet women have been denied their requests for light duty or other changes for some time. Nearly two-thirds of first-time mothers work during their pregnancies, and the majority need some sort of accommodation similar to those the EEOC details. Yet an estimated quarter million women are denied these requests each year, and many more don’t even ask because they’re afraid of the consequences or assume their employer will say no.
That’s what happened to Kimberly Erin Caselman, who worked at Pier 1 for a little over two years before becoming pregnant. After her doctor gave her restrictions, she was given just eight weeks of light duty assignments before the company forced her onto unpaid leave, even though she wanted to keep working. Benet Holmes, who worked for Walmart, asked to be switched to light duty after she was pregnant. Despite the fact that she was given permission, other store managers switched her back to regular duty, and she eventually miscarried. Tiffany Beroid, another Walmart worker, was fine until her seventh month of pregnancy, when her doctor said she was high risk and needed to be on light duty. She was denied that change and forced to take unpaid leave. Reyna García is suing her grocery store employer after the loss of her baby because she was denied light duty.
Meanwhile, the EEOC says the “most familiar form of pregnancy discrimination” is when someone fires a pregnant woman or refuses to hire her in the first place because of her pregnancy, no matter what her abilities are. “Adverse treatment of pregnant women often arises from stereotypes and assumptions about their job capabilities and commitment to the job,” it notes. But making decisions based on these stereotypes violates Title VII.
As an example, it tells the story of Maria, who had to take several days off after she told her employer she was pregnant. “When Maria returned to work, her supervisor said her body was trying to tell her something and that he needed someone who would not have attendance problems,” the guidance says. She was fired the next day, despite the fact that her attendance record wasn’t any worse than other coworkers. Or take Darlene, who applied to a job while visibly pregnant and told them she could work through August, covering the busiest months of the year. But she was told she couldn’t have the job because the company couldn’t risk her deciding to stop working earlier.
This kind of treatment is not rare. An analysis of discrimination lawsuits found that employers frequently vilify pregnant workers and rely on stereotypes to justify firing them. The majority claimed that the pregnant women were fired for poor performance or attendance, but those criticisms didn’t surface until after the employers knew about the pregnancies.
Women can end up experiencing pregnancy discrimination before they even conceive. For example, the Supreme Court decided against a battery manufacturing company that excluded all fertile women from jobs that might pose a hazard to unborn children, but didn’t exclude fertile men. That violates Title VII as well, which prohibits employers from discriminating against women just because they have the capacity to get pregnant. “An employer’s concern about risks to the employee or her fetus will rarely, if ever, justify sex-specific job restrictions for a woman with childbearing capacity,” the EEOC notes.
Similarly, employers can’t treat women differently because they want to get pregnant. As an example, Anne was a high-level executive who told her manager she was trying to get pregnant, but the manager responded that it might interfere with her job. She was demoted two weeks later, even though she had consistently outstanding performance reviews.
The EEOC notes that women may also end up illegally discriminated against when they come back to work after a pregnancy. Even if a long time has passed, a woman will have a case if there’s evidence that the pregnancy or childbirth motivated discriminatory actions.
The guidance also mentions a handful of other conditions that can’t be discriminated against, such as lactation, fertility treatment, and abortions.
None of this is new; the EEOC is simply clarifying where the law currently stands on these issues. But clearly employers haven’t gotten the memo. Since the PDA was enacted in 1978, pregnancy discrimination charges “have increased substantially,” the EEOC notes. They increased from over 3,900 in 1997 to 5,342 in 2013. A study found that these complaints have risen faster than the increase in women joining the workforce. The majority of the charges are from women who say they were fired because they were pregnant.
One way to make all of this even clearer would be to pass the Pregnant Workers Fairness Act, which requires employers to give pregnant workers reasonable accommodations like light duty or a stool to sit on, unless the changes would cause undue hardship. Yet while that has been introduced a number of times, it hasn’t even gotten a vote. Without federal action, nine states have passed bills of their own.