The Pregnancy Discrimination and Federal LawPregnancy Discrimination
The Pregnancy Discrimination Act of 1978 (PDA)
The PDA is a part of Title VII of the Civil Rights Act. Congress enacted the law in 1978 to make it illegal for a company with fifteen or more employees to discriminate against a woman because she is pregnant. As you might imagine, this means that an employer cannot legally fire or demote a woman after learning that she is pregnant. This is true even when an employer couches action that it takes in terms of paternalistic concern for the woman: “Honey, you don’t want that promotion. No pregnant woman needs to be under that kind of stress.” And so on. It is important to note, however, that the law does not require employers to treat you any differently than it treats other employees. So, if, for instance, you work on an assembly line and need to take more bathroom breaks late in your pregnancy, your employer, at least under the PDA, is not to make that easy change for you. If you insist on it, your employer can legally fire you. That is, if you are not also protected under the ADA—and you may be. But we’ll get to that in a bit. First, here’s an example of a pregnancy discrimination case.
Pregnancy discrimination cases sometimes involve shocking facts—and big verdicts. Take the case of The Price Is Right model Brandi Cochran. Cochran worked as a model on the show for seven years. After years of trying, she became pregnant with twins, a boy and a girl, at the age of forty-one. While she was thrilled, her producers and co-workers were not. When Cochran told one of the producers, he said that he knew because he had noticed the weight gain. Another producer implied that he would have fired her before she announced had he known of the pregnancy. Show management reduced her workload. Co-workers began to make fun of her, calling her “wide load.” Tragically, Cochran miscarried her son. She gave birth to her daughter three months prematurely. As a result, the child had severe health problems. Caring for her premature daughter was made difficult by the fact that Cochran had to struggle to lose weight to return to the show—something she wanted to do. It never happened. For months, the show refused to return Cochran’s calls. Cochran first learned that she had been fired after she was removed from the show’s website.
Cochran sued, and her case went to trial. The jury returned a verdict of approximately $8 million, much of it in punitive damages. You can see Cochran discuss her victory at this link: http://abcnews.go.com/Entertainment/video/price-model-wins-lawsuit-17786783.
Sadly, the California Supreme Court (this case was tried in state, not federal, court) later overturned the verdict, finding that the trial court judge had given an incorrect jury instruction. The court sent the case back down to the trial court for another trial. At the time of this writing, the case is still pending. As is often the case, Cochran will likely reach a settlement with the show on favorable terms, given how badly the show lost in the first round.
Bottom Line for Recognizing a Pregnancy Discrimination Claim
PDA cases are just like any other discrimination case. You must have evidence of discrimination. To be protected under the act, you have to have evidence that you are being treated differently than others, at least in part, because you are pregnant. Sometimes there will be direct evidence, like, “We just can’t have a pregnant woman working here.” Just as often, you won’t have any such evidence. Things will be a bit more subtle than that. In those cases, you’ll need to look for signs that you are being treated differently than you were before you announced your pregnancy and any signs that co-workers at your level are getting better treatment. If something concrete happens, like you lose out on a promotion that was rightfully yours or you get moved from a supervisory position to one with no direct reports and little room for advancement, go see a lawyer. You may be protected under the PDA.
Pregnancy Discrimination Against Low-Wage Workers
The Bloomberg case (read about it in chapter 9) and the Cochran case are examples of women with high-income jobs and career choices. This is not to minimize the discrimination against them: even high earners are often a paycheck or two away from serious financial difficulties. That said, it is important to remember that low-income families are often in even more precarious positions, and they lack the resources to fight back against discrimination. The Center for WorkLife Law issued a report titled Lean In, Or Leaned On? Poor, Pregnant, and Fired.You can find it here: http://worklifelaw.org/pubs/PoorPregnantAndFired.pdf.
- Low-income families are caught between extreme demands at both home and work.
- Low-income families are more likely to be headed by single parents—a reported 66 percent of low-income parents are single—and to have children with health and developmental difficulties. More than two-thirds of low-income parents in one study cared for children with learning disabilities or chronic health conditions. Low-income families are also likely to provide more care for elderly and ill family members
- than more affluent families: those living under the federal poverty level are more than twice as likely to be caring for a parent or in-law for thirty or more hours a week.
- Meanwhile, low-wage jobs typically provide little flexibility or time off, even for emergencies, and often require unpredictable schedules.
- In one survey, 60 percent of employers reported that, from week to week, hourly workers’ schedules changed either “a lot” or “a fair amount.” Another study reported that almost 60 percent of low-wage workers cannot choose their starting and stopping times, and one-third cannot choose their break times.
A Powerful Tool for Pregnant Workers
What about when you have not been fired but just need changes at work due to issues related to your pregnancy?
Stop! Before you go further, if you are still employed and facing pregnancy discrimination or discrimination related to childbirth and your employer has fifteen or more employees, do these things:
- Do not attempt to negotiate with your employer yourself. I am all in favor of self-help and saving on attorney’s fees, but this area of the law is becoming highly technical, and a slight misstep could result in losing your job without any recourse.
- Go see an attorney who specializes in employment law ASAP. The National Employment Lawyers Association (NELA; http://www.nela.org) is a great resource for this.
- Tell your attorney to find this law review article, which will be hot off the presses by the time this book is published: Joan C. Williams, Robin Devaux, Danielle Fuschetti, and Carolyn Salmon, “A Sip of Cool Water: Pregnancy Accommodation after the ADA Amendments Act,” which is being published in the Yale Law & Policy Review.
- Talk to your doctor about any health-related issues you may be facing as the result of your pregnancy. At some point, you will need to have your doctor write you a letter, but not before you can talk with your attorney about how best to handle this. Do not have your doctor or any other health-care provider write your employer a letter requesting light duty. A number of courts have held that employers are not, in many instances, required to grant pregnant women light duty. You could be fired for making this request.
Many women in the workplace today are not faced with overt discrimination based on their pregnancy. Instead, they sometimes lose their jobs because they require changes (often, very minor ones) in their work schedules. Consider this extreme example:
A Walmart employee developed a pregnancy-related urinary tract infection. To treat it, her doctor told her that she needed to frequently drink water. She asked Walmart to allow her to carry a water bottle with her while she worked. Walmart had a policy of allowing only cashiers to have water bottles. This woman was not a cashier. When she insisted on being able to carry a water bottle to treat her health condition, Walmart fired her.
Was this a violation of the PDA? No, there was no evidence that Walmart sought to discipline this employee based on her pregnancy. It fired her because the company refused to make a temporary exception to its policy to allow this employee to comply with her doctor’s orders. A similar case, Young v. UPS, involved an employee who was not allowed to return to work just because her health-care provider said she needed light duty for a few months. Ms. Young lost her case. (See the sidebar.) This is why pregnant women who require changes at work to address health concerns should consult an attorney.
Sidebar: An Example of Pregnancy Discrimination
Some legal analysts believe that the Fourth Circuit Court of Appeals, the federal appellate court that handles appeals from federal courts in Virginia, Maryland, North Carolina, West Virginia, and South Carolina, is moving from the far right toward the middle of the ideological spectrum. That may be so, but middle of the road may be as far as it goes. At least, that’s what is suggested by a recent opinion adopting a narrow view of employee rights under the PDA in Young v. United Parcel Service Inc.
If you are not interested in the inside baseball of the legal analysis of this case and just want to know your rights, here is the bottom line: your employer does not have to provide a pregnant employee a light-duty assignment unless those assignments are offered to employees injured “off the job.” For instance, if your employer requires that employees be able to lift seventy pounds to perform the job, and your doctor says you can lift only twenty-five pounds during your pregnancy, your employer can remove you from your job, as long as it enforces this same rule for all employees who are also injured off the job. (I find it a bit strange to consider pregnancy as an “off-the-job injury.” This puts pregnancy in the same category as a back injury. Certainly, an employee can injure his back on the job or off. But how many women become pregnant at their job?) This is important because many large employers only allow for light-duty job assignments for employees injured on the job. They do this primarily to save on worker’s compensation costs.
Note, however, the employer must actually stick to its policy. If the employer’s policy is to provide light-duty assignments only for on-the-job injuries, but in practice it provides such assignments to some employees injured off the job, then a pregnant employee is entitled to the same treatment, regardless of what the policy says. Finding out what your employer’s practice actually is may be difficult. So, as I always advise, see your friendly neighborhood employment lawyer to find out whether your employer is unlawfully discriminating against you.
Now back to the sausage making. In Young, UPS would not allow the employee, Peggy Young, to work because her medical providers said that she could not lift more than twenty-five pounds while pregnant. UPS claimed Ms. Young’s job required her to lift at least seventy pounds. (There was some dispute about whether someone in her job had to lift that amount, but the parties did not disagree that it was the policy.) It was also UPS’s policy to grant light-duty job assignments to those injured on the job. UPS characterized pregnancy as an off-the-job “injury.” The parties did not dispute that UPS enforced this policy. The Young court had to decide whether UPS’s policy was illegal under the PDA.
Applying the PDA in Young
The dispute in Young (at least on this issue) was how to interpret the statutory section’s second clause, which states that a pregnant woman cannot be treated differently than those similar in their inability to work. Ms. Young argued that the meaning was unambiguous: the PDA prohibits treating pregnant women differently than those with short-term restrictions on the ability to work. By this argument, an employer could not provide light-duty assignments to those injured on the job while denying those assignments to pregnant women. They are both similar in their inability to work. The Sixth Circuit agreed with this argument in Ensley-Gaines v. Runyon, 100 F.3d 1220, 1226 (6th Cir. 1996).
UPS argued that the first clause of that section placed pregnancy discrimination within the definition of sex discrimination. The company noted that courts have long held that an employer does not violate the law just because it has a policy that negatively affects a particular woman, provided that a man would be treated similarly. That is, an employer cannot apply a policy that makes a distinction based on sex or pregnancy. But as long as the employer is making an employment decision based on a neutral factor, like an on-the-job versus an off-the-job injury, that distinction (at least on these facts) is legal, even if it happens to negatively affect a pregnant woman.
Here, the court sided with UPS, finding that the second clause made sense only when read in conjunction with the first, meaning that UPS could have a policy that denies a pregnant woman light-duty work provided that all employees injured off the job are also denied work. The court reasoned as follows:
Interpreting the PDA in the manner Young and the ACLU urge would require employers to provide, for example, accommodation or light-duty work to a pregnant worker whose restrictions arise from her (off-the-job) pregnancy while denying any such accommodation to an employee unable to lift because of an off-the-job injury or illness. Under this interpretation, a pregnant worker who, like Young, was placed under a lifting restriction by her health-care provider and could not work could claim that the PDA requires that she receive whatever accommodation or benefits are accorded to an individual accommodated under the ADA, because the pregnant worker and the other individual are similar in their ability or inability to work—i.e., they both cannot work. By contrast, a temporary lifting restriction placed on an employee who injured his back while picking up his infant child or on an employee whose lifting limitation arose from her off-the-job work as a volunteer firefighter would be ineligible for any accommodation. Such an interpretation does not accord with Congress’s intent in enacting the PDA.
While I disagree with the court’s reasoning, it is for now the law of the land in the Fourth Circuit. Ms. Young’s attorneys have requested that the US Supreme Court hear the case. Stay tuned.
Bottom Line with Pregnancy Discrimination
For any woman experiencing difficulties at work (or in higher education, as discussed in chapter 12), it is important to remember that you have options. Keep these points in mind.
Talk with your doctor about any problems you may be facing in the workplace due to your pregnancy. Discuss in depth any changes you think you might need at work to ensure that you have a healthy pregnancy.
Keep in mind that the ADA protects both physical and mental disabilities. If the stress of pregnancy is causing you to experience high levels of anxiety that are affecting your sleep and eating habits, talk to your doctor about whether you might be suffering from depression or generalized anxiety disorder.
If your doctor believes that you are suffering from a disability, have her send a letter to your employer asking for changes in your work environment. Review any job descriptions to make sure that the requested accommodation does not suggest that you are unqualified for the position. Pay particular attention to any lifting restrictions.
If your company has fifty or more employees, you may be entitled to leave under the FMLA. Talk to your human resources department. FMLA requires that the company inform you of your rights.
If you have short-term disability insurance coverage through your work, you may be eligible to take time off and still receive pay. Talk to your doctor and human resources about this. Make sure that your doctor is aware of what you need to show to receive the coverage. This should be in your “plan documents.” If you are not sure whether you have these, talk to human resources.
Find a lawyer to talk to, even if you ultimately do not need to hire him or her. Many lawyers offer free or low-cost consultations. If you need a contingency fee arrangement, tell the lawyer up front. There’s no point in wasting your time if the lawyer does not take cases on contingency. To find a lawyer, look for someone who specializes in representing employees. The NELA website is a good resource (http://www.nela.org). The lawyer-locator function can give you the contact information for attorneys in your state.
If all else fails, call the EEOC or go to a local EEOC office and file a charge. This is easy and free (though it may take an afternoon to get done). You do not need a lawyer to do this. If you later get a lawyer, she can then take over the EEOC process for you. You can file against your employer and still keep your job. Remember that a failure to file with the EEOC within 180 days of any discrimination could mean that you lose any right to hold your employer accountable.