How the Motherhood Penalty Hurts Everyone

In the News, Pregnancy Discrimination, Sex Discrimination

April 27, 2016

family responsibilities discriminationAmerica has a complicated relationship with motherhood. Our country constantly talks about how important moms are, but at the same time it rarely follows it up with actual help. In fact, we tend to penalize mothers in the workplace. And now there’s evidence that the so-called “motherhood penalty” can even hurt women who aren’t mothers and never intend to be.

We recently marked Equal Pay Day, the date on which a woman without children would have finally earned the same amount of money as a better-paid man for doing similar work the preceding year. A woman with children would have to work until June 4th. (Even more depressing: A black woman would have to work until Aug. 23 and a Hispanic woman until Nov. 1 to earn the same money.)

Some experts attribute these disturbing gaps in pay to managers’ assumptions that women put their families first and that women without children will become pregnant at some point in the future. This has been called the “pregnancy penalty” or the “motherhood penalty.”

As an attorney specializing in fighting workplace discrimination, I can attest that these attitudes are more widespread than many of us care to admit.

Here’s a true story. A high-level executive who had worked for seven years at a company and was in line to take over as CEO was asked by the current CEO if she planned to have more children. (She had one at the time.) She responded that she was not sure.

The CEO then told her that his job required too much travel for a woman with more than one child and that she should instead take a different position that allowed her to be at home more. Understandably disturbed by this intrusive — and illegal — line of questioning, she raised the issue with her HR department.

When the CEO found out, he retaliated by demoting her, removing her direct reports and, when she was away from the workplace, dismantling her office. At that point, she came to us and we were able to secure an exit from the company on favorable terms. She went on to a more child-friendly workplace, but it should have never come to that.

Aside from hurting individual women, these kinds of attitudes hurt our society at large. For one thing, married women are increasingly the breadwinners in America, so the fact that they are being paid less and having their career prospects curtailed by outdated assumptions means that many families are not doing financially as well as they should be. Even worse, this wage disparity and the motherhood penalty may be pushing more women into poverty.

So how do we fix this? There are already two major laws that address the pay gap: The Equal Pay Act and Title VII of the Civil Rights Act. The Equal Pay Act makes it unlawful to pay a woman at a lesser rate than a man of similar training for similar work. Title VII makes it illegal for an employer to discriminate on the basis of sex for any employment action, including pay. There are benefits to both laws.

The Equal Pay Act allows filing an action directly in federal court without first filing with the Equal Employment Opportunity Commission, but it does not allow a women to recover for emotional distress or punitive damages. It does, however, allow for “liquidated damages,” usually two times lost wages, in some circumstances.

Title VII allows a woman to recover for emotional distress, punitive damages and lost wages. But a woman must first file a charge with the EEOC and the law does not cover employers with fewer than 15 employees. Title VII, however, is not limited to unequal pay, like the Equal Pay Act. For instance, as with my client mentioned above, it makes it unlawful for an employer to treat a woman differently than a man based on stereotype, such as the idea that a woman with children cannot perform at work as well as a man.

These are certainly important laws. They allow employment lawyers like me do some employment jujitsu for individual women (and some men.) But despite their long history — Congress passed the EPA in 1963 and Title VII in 1964 — these laws have not been successful on a macro level. We need policy change. One issue is transparency. Many women don’t bring EPA or Title VII actions because they don’t know they are being paid less than men for the same work. The Obama Administration is taking some steps to address this issue by requiring large employers to report pay scales broken out by sex and other categories.

It is important that our nation take steps to solve this persistent problem, because when women aren’t paid enough, we all pay the cost.

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