In The Courts

States Fight Back Against Pregnancy Discrimination

Thursday, May 2, 2013

The federal Pregnancy Discrimination Act of 1978 was supposed to prevent unlawful firings and other mistreatment, but courts have been giving employers a pass. That's about to change in Maryland, which is following other states in passing pregnancy protections.




Pregnancy test
Pregnancy test

Credit: BrownGuacamole/Ernesto Andrade on Flickr, under Creative Commons (CC BY-ND 2.0).

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(WOMENSENEWS)--When Peggy Young got pushed out of her job at UPS after she became pregnant, she fought back by bringing a lawsuit against her employer.

She said UPS discriminated against her by refusing to give her a light-duty rotation, even though UPS admitted that it routinely accommodates workers with on-the-job injuries, workers who lose their drivers' licenses and workers who are covered by the Americans with Disabilities Act.

Unfortunately, many employers think it's OK to treat pregnant workers worse than other employees who need temporary light-duty positions or other temporary adjustments, like the ability to sit down or drink more water. And some courts have agreed.

In Young's case, in which the ACLU submitted a friend-of-the-court brief, an appeals court held that to require UPS to give pregnant workers the same kinds of accommodations it gives other workers would be to grant special "most favored nation status" to pregnant employees.

Recently, however, a growing number of states have decided that it is fundamentally unfair and unlawful to allow companies to push pregnant women out of the work force in this way. The majority of American women will be pregnant at some point in their working life, and it makes no sense to allow employers to send pregnant workers packing, when employers can keep pregnant workers on the job using the same policies they already use to keep temporarily injured or disabled workers at work.

While the federal Pregnancy Discrimination Act was passed in 1978 precisely to ensure that pregnant women were not subject to unlawful firings and , courts--like the one in Young's case--have been allowing employers to treat pregnant workers worse.

States have started to fight back though. Recently, Maryland, with the support of Young, the ACLU of Maryland and other civil rights groups, passed a law that will close this gap in the law, at least for pregnant workers in Maryland. The governor is expected to sign the bill into law this month. Now, pregnant women in Maryland will receive the same kinds of accommodations that are currently provided to other employees with temporary physical restrictions.

In New York, the governor and advocates, including the New York Civil Liberties Union, are trying to pass the New York Women's Equality Agenda, which will explicitly require employers to provide a reasonable accommodation for pregnant workers, just as they already do for many other workers who are temporarily unable to do any aspect of their job.

The law would provide more certainty for pregnant workers such as Julie Desantis-Mayer, who was forced onto unpaid leave when she requested light-duty in her job as a package delivery driver for UPS. We filed a sex discrimination charge with the Equal Employment Opportunity Commission on behalf of Mayer and are currently proceeding before the agency.

A number of states, including Michigan, Connecticut, California and a handful of others, already have some kind of law requiring parity in accommodations for pregnant workers. Other states are starting to follow suit--this year bills were introduced in Iowa, Illinois, and Maine as well.

But these bills should not be necessary. Congress tried to outlaw the widespread practice of pushing pregnant women out of the workplace 35 years ago. However, employers--and some courts--have not gotten the message.

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The following article involves the Pregnancy Discrimination Act of 1978 (PDA), which amended Title VII of the Civil Rights Act of 1964, administered by the EEOC (Equal Employment Opportunity Commission), where I worked in the Office of the General Counsel from Oct. 1965 (three months after the EEOC commenced operations) until mid-1973.

The article indicates that courts haven’t been following Title VII as amended by the PDA by not requiring that an employer accommodate to the needs of pregnant women as employers are required to do for the needs of persons with disabilities, under the Americans with Disabilities Act, which was passed in 1990, many years after Title VII and the PDA. All of these are federal laws.

I drafted the EEOC’s Guidelines on Pregnancy and Childbirth in 1972, on which the PDA was based. These Guidelines, Title VII, and the PDA were never intended to require that employers make reasonable accommodations to the needs of pregnant women and did not so require. These Guidelines and the PDA required that employers not refuse to hire women who could perform the jobs involved because they were pregnant, not fire women employees because they were pregnant, and provide the same benefits (such as sick leave and leave with or without pay) to women who were physically unable to work before, during and after childbirth or who wanted time off during those times as it provided to other employees who were physically unable to work or wanted time off.

It is true that this puts women at a disadvantage vis-à-vis employees with disabilities but that needs to be rectified by the passage of state laws, as is being done, or, better yet, with a federal law, which this article doesn’t mention or recommend.

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