The State of Pregnancy Rights in the Workplace
July 15, 2014
Author: Nina Martinez, Law’15
Discrimination in the workplace on the basis of pregnancy is far from being a relic of the past. While the average person might envision pregnancy discrimination taking place in an antiquated setting reminiscent of the “Mad Men” era, the reality is that employers are still blatantly disregarding women’s rights and discriminating against women due to pregnancy and pregnancy-related medical conditions. The fight against gender discrimination in the workplace in the form of discrimination against women because of pregnancy was not necessarily considered when Title VII of the Civil Rights Act of 1964 was first enacted. While Title VII is championed as an integral component in the fight to dismantle inequality in the workplace, the protection against discrimination on the basis of sex was initially quite circumscribed and was interpreted to exclude pregnancy. Following the passage of Title VII, the Supreme Court interpreted language barring discrimination “because of” sex to exclude pregnancy in both General Electric Company v. Gilbert and Geduldig v. Aiello. The Rehnquist majority in Gilbert decisively stated that “[w]hile it is true that only women can become pregnant, it does not follow that every legislative classification concerning pregnancy is a sex-based classification.” The Gilbert court struck down both the district and appellate courts’ determination that the exclusion of pregnancy-related disabilities from the defendant employer’s disability plan constituted sex discrimination in violation of 703(a)(1) of Title VII of the Civil Rights Act of 1964.
In a swift response to the Gilbert decision, Congress enacted the Pregnancy Discrimination Act of 1978, amending Title VII to include pregnancy as a protected class. Congress’ decision to amend Title VII to explicitly protect pregnancy and pregnancy-related medical conditions from discrimination in the context of employment signaled Congress’ disagreement with the Supreme Court and a view that it had clearly violated the statutory intent of Title VII. Despite the passage of the Pregnancy Discrimination Act, female employees were still subject to various obstacles in the workplace. This was in part due to the fact that the Pregnancy Discrimination Act was enacted largely to combat the most blatant and superficial forms of discrimination. The language of the Pregnancy Discrimination Act prohibits discrimination solely on the basis of pregnancy, but does not bar employers from taking adverse action against a pregnant employee as a result of the inevitable consequences of pregnancy. For example, in Maldonado v. US Bank and Manufacturers Bank, the Seventh Circuit held that an employer could not prejudge a pregnant woman on the basis of pregnancy but was entitled to take action against a female employee where the natural symptoms of pregnancy coincided with the employers’ expectations of his or her workers. The Maldonado court reasoned that while employers are not entitled to make preemptive determinations that women who are pregnant will require leave and accommodations, it is in their discretion to take adverse employment action against the pregnant employee who might regularly arrive late to work as a result of morning sickness or require leave for the purposes of bed rest before birth. The limited language in Maldonado is paralleled in holdings throughout the country including Troupe v. May (in which the court held that actual absenteeism due to pregnancy may be the legitimate cause of termination) andMarafino (in which a court upheld a judge’s refusal to hire a clerk on the grounds that she would require pregnancy leave soon after starting work).
Fortunately, Congress enacted the Family Medical Leave Act of 1993 in order to fill the gaps that the Pregnancy Discrimination Act failed to address. The Family Medical Leave Act mandates that employers with a workforce of at least fifty employees must grant up to twelve weeks of unpaid leave for the purposes of caregiving or disability, including pregnancy and pregnancy-related leave. While the Family Medical Leave Act is a strong step in the direction of equal rights in the workplace for women, it fails to cover a large swath of workers, including those employed in businesses with less than fifty workers and those who have been employed for less than a year with a particular employer. The National Partnership for Women and Families projects that approximately sixty percent of American workers are not covered by the protections granted by the Family Medical Leave Act, and another seventy-eight percent of workers who are eligible for leave under the act do not take it because they cannot afford to take unpaid leave. Despite signaling a huge sea change in the American landscape, the twelve unpaid weeks of leave mandated by the Family Medical Leave Act is rather stingy in light of international standards. According to the Huffington Post, the United States is the “only industrialized nation not to mandate paid leave for mothers of newborns.” A more expansive statute that would also provide pay for a portion or all of the mandated leave time would mark a significant advance in a nation in which most families are dependent on two adults’ incomes to operate and stay above the poverty line.
Despite the lag in leave protections for workers, male and female alike, advancements in other areas protecting pregnant workers are still occurring. Most recently, the Affordable Care Act instituted a regulation mandating employers to establish and maintain a comfortable and hygienic space for female employees who have recently given birth to express milk in the workplace. The Affordable Care Act’s mandate along with litigation around the right to express breast milk as a protected interest under Title VII’s prohibition of discrimination on the basis of pregnancy suggest a resurgence of activity around these protections. In an important victory, the Fifth Circuit held in EEOC v. Houston Funding II that terminating a female employee because she is lactating or expressing breast milk constitutes sex discrimination in violation of Title VII of the Civil Rights Act of 1964. Ultimately, the fight to protect discrimination against pregnant women in the workplace will continue to be fought until barriers to access and opportunity are entirely eradicated.
- General Electric Company v. Gilbert, 429 U. S. 125 (1976)
- Geduldig v. Aiello, 417 U.S. 484 (1974)
- Maldonado v. U.S. Bank, 186 F.3d 759 (1999)
- Troupe v. May Department Stores Co., 20 F.3d 734 (1994)
- Marafino v. St. Louis County Circuit Court, 707 F.2d 1005 (1983)
- EEOC v. Houston Funding II, Ltd., 717 F.3d 425 (2013)
- The National Partnership for Women and Families
- Equal Employment Opportunity Commission Guidance on Pregnancy Discrimination
- Department of Labor: Family Medical Leave Act Employee Guide
- Huffington Post: “Paid Parental Leave: U.S. vs. The World”
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