Honor Thy Mother

Aug 9th, 2013

Pregnancy discrimination not only harms employees—it can result in labor pains for employers as well.

Some days, you wake up believing that all is right with the world. You feel that, as a species, we have come a long way—we benefit from remarkable advances in medicine and technology and, despite occasional lapses and some notable exceptions, we’ve progressed in the areas of civil rights and respect for human dignity. We have truly evolved. Then, just as you’re enjoying this sensation of good will and pride in our accomplishments, something happens that drags you back down the evolutionary ladder and smack-dab into the primordial ooze.

To wit, the subject of this month’s column, pregnancy discrimination, submerges our labor market into a sea of devolved muck. You would think that employers would have an intuitive idea that discrimination on the basis of pregnancy is illegal. After all, everyone understands that discrimination based on a person’s sex is wrong and, unless I missed something, only women can be pregnant. Thus, discrimination based on pregnancy is a form of sex discrimination. However, it seems that many employers don’t make this connection. In fact, rather than claw our way out of this particular primordial ooze, it appears that we are sinking deeper.

The federal agency charged with enforcing anti-discrimination laws is the Equal Employment Opportunity Commission (EEOC). Pregnancy discrimination complaints received by the EEOC increased a whopping 39% from 1992 to 2003—and the trend continues. In the 10 years prior to 2012, 52,000 women filed complaints with the EEOC. In response, the EEOC has required employers to compensate women for discrimination to the tune of more than $150,000,000. For those who have trouble deciphering long strings of zeros, that is $150 million. I suspect that many more women who might have legitimately filed complaints did not. At least in this area, we are now eyeball-deep, ooze-wise.

How to Be Discriminating

How does pregnancy discrimination manifest itself? Answer: in the most despicable ways. Pregnant women have lost their jobs for having to go the bathroom more frequently and having to rest more frequently. Some patronizing employers have even restricted a woman’s job functions under the erroneous assumption that such functions may harm the fetus. They may discharge the pregnant worker on that basis.

One of the more troubling forms of pregnancy discrimination is impeding the ability of post-partum women to pump breast milk. Let’s look at the case of Donnicia Venters. She worked for a debt collection agency and took a 10-week leave to have her baby. When she was ready to return, she contacted the president of the company asking if she could pump breast milk at work. “No,” he firmly replied, and suggested she needed to stay home longer. Ultimately he informed her that she had been laid off and her position had been filled.

Some patronizing employers have restricted a woman’s job functions under the erroneous assumption that such functions may harm the fetus.

Venters filed a complaint with the EEOC on the basis of pregnancy discrimination. The EEOC found in her favor, but the employer appealed to the District Court. And U.S. District Court Judge Lynn Hughes (a male) dismissed Donnicia’s case on the basis that lactation was not pregnancy-related. Huh? He further ruled that “firing someone because of lactation or breast-pumping is not sex discrimination.” Huh?

Now, I’ve clerked for judges at the District Court and Appellate levels and I’ve witnessed the difficulty of a judge’s job. Making hard decisions is something most of us do our best to avoid, maybe put off for another day that never comes. Judges can’t do that. They have to decide, and that’s their burden day in and day out, throughout their careers. Judges look at what the statutes say, how other courts have decided the same issue and the facts of the case before them, and then make their decision. Judge Hughes did not arrive at his questionable conclusions on his own—other Federal District Courts had made this same decision! At that time no Appellate court had ruled on the issue. So yes, decided cases and statutes do have a bearing on a judge’s decision.

However, common sense should have prevailed here. The overriding consideration should have been the simple fact that men do not generally lactate and thus this form of discrimination, like all forms of pregnancy discrimination, is gender-based. The health benefits for babies’ taking breast milk have been well established. But under Judge Hughes’ ruling, Venters and all women would be forced to choose between giving their babies the health benefits of breast milk and keeping their jobs. Thankfully, all is not lost: H.R.3590, the Patient Protection and Affordable Care Act of 2011, requires employers to give women breaks to nurse or pump breast milk.

Delivering Decency

Although I think common sense and human decency should lead an employer to the correct conclusion about how to treat a pregnant worker, these attributes are apparently not available to some folks. So let’s look at what the law stipulates. The most applicable statute is the Pregnancy Discrimination Act (PDA), which dictates the rights of the employee and responsibilities of the employer. Here are the high points:

• As long as a woman can perform the major functions of her job, an employer cannot refuse to hire her because of pregnancy. In fact, a woman is not required to disclose the fact that she is or may become pregnant prior to being hired and an employer may not ask.
• A woman cannot be terminated, demoted or denied an increase in pay or position due to pregnancy.
• An employer cannot create a screening process targeted at pregnancy to determine an applicant’s ability to perform a particular job. However, an employer can use the same screening process for other employees.
• An employer cannot require a woman to take pregnancy leave or force a layoff due to pregnancy. (This point was driven home to a company called Akal Security Inc., which had a contract with the federal government to provide security at U.S. Army bases. The EEOC charged that Akal had a policy of forcing pregnant women to take leave or otherwise be fired. The company paid a settlement of $1.6 million.)
• An employee whose pregnancy results in limitations in her ability to perform the functions of her position, has to be treated the same as anyone else with a temporary disability.

Believe it or not, the legislation outlined above has been in place since 1978. One caveat: This statute applies to employers who have at least 15 employees.

However, the PDA is not the only statute that may apply. The Family and Medical Leave Act (FMLA) of 1993 allows employees up to 12 weeks of unpaid leave to care for a newborn. If pregnancy results in a serious health condition resulting in the employee’s inability to work, then unpaid leave provisions may also apply. Also, never forget that state statutes may apply and that these may provide additional rights not guaranteed in the PDA or FMLA. Also keep in mind additional employee rights: For example, if an employer provides health insurance, pregnancy and related conditions must be covered. All employee fringe benefits applicable to non-pregnant employees must also apply to pregnant workers. And any benefits related to pregnancy cannot be limited to married employees. (When it comes to religious institutions all bets are off, but don’t get me started.)

A final word: Pregnancy discrimination is not the sole purview of male employers, but the numbers do seem to indicate that this group is more mired in the primordial ooze than its female counterparts. Does this mean that certain male employers are less evolved? Or have they simply forgotten that their mothers were once pregnant with them? My theory is that they were all bottle-fed babies and their neurons did not fully develop.

DAYSPA advisory board member Michael L. Antoline is a legal affairs writer and attorney in Champaign, Illinois. Information in this column is general. Seek legal counsel for specific cases.

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