When Congress enacted the Pregnancy Discrimination Act of 1978, it amended Title VII of the Civil Rights Act of 1964 and made it unlawful for employers to take adverse employment actions against pregnant employees. Under the Act, a woman cannot be rejected for a job or promotion, forced to take leave, given lesser assignments, or fired because of the pregnancy.
Amendments were added to the Americans with Disabilities Act (ADA) in 2008 to require that employers provide necessary accommodations to pregnant women with certain pregnancy-related conditions that could qualify as disabilities. While pregnancy is not considered a disability under the ADA, conditions related to pregnancy are. Many pregnancy-related conditions may now qualify as disabilities, such as fatigue and nausea, as long as the impairment “substantially limits a major life activity,” according to the ADA. The EEOC believes employers cannot retaliate against workers who become pregnant. Employers also must accommodate these employees to the best of their abilities.
Many state and local laws go farther than federal law in providing pregnant workers with protection. Twenty-two states and the District of Columbia now have laws that grant pregnant employees the right to reasonable accommodations while on the job.
However, pregnancy discrimination remains widespread. Almost 31,000 pregnancy discrimination charges were filed with the Equal Employment Opportunity Commission (EEOC) between 2010 and 2015. Although women from all economic classes are subject to pregnancy discrimination, low-income women tend to pay a higher price, especially women who perform physically demanding jobs.
The Society for Human Resources Management reports two-thirds of men and one-third of women do not take advantage of their employers’ parental leave policies. This may be because they are afraid they will be punished for doing so or they cannot afford to take that much time off of work.
Pregnancy Discrimination Lawsuits
Gender Discrimination against Attorneys
Attorneys at Sanford Heisler Sharp LLP filed a $100 million class-action employment discrimination lawsuit against Morrison & Foerster, one of the largest law firms in the United States, in the US District Court for the Northern District of California.
The Complaint was filed in April 2018 on behalf of three female Morrison & Foerster associates. In January 2019, three additional plaintiffs were added to the lawsuit. The lawsuit alleges the firm practices systemic gender discrimination against its female lawyers, especially those who have children or are pregnant. In the plaintiffs’ experience, Morrison & Foerster’s female attorneys are continually denied opportunities for promotion and higher pay after pregnancy, childbirth, and maternity leave.
The plaintiffs each took maternity leave once they became pregnant and gave birth. When they returned to work, they were denied anticipated promotions, as well as the corresponding pay increase. The female lawyers’ hourly billing rates increased as though they had been promoted, however.
The class action seeks all equitable and legal relief available under California state and federal anti-discrimination, retaliation statutes, and equal pay. The plaintiffs also seek monetary and injunctive relief so Morrison & Foerster cannot continue to discriminate going forward.
High-Profile Pregnancy Discrimination
A former Netflix manager, Tania Zarak, sued the company for pregnancy discrimination in April 2019. Ms. Zarak alleged that, after she told her supervisor that she was pregnant, he removed her from projects and stopped inviting her to meetings. She reported the behavior changes to human resources and was fired.
Discrimination Case Settled for $82,000
LA Louisanne, Inc., a Los Angeles restaurant and night club, violated Title VII of the Civil Rights Act of 1964 and Pregnancy Discrimination Act of 1978 when it reduced a server’s hours after finding out she was pregnant. According to the lawsuit, the server was removed from the work schedule entirely after she gave birth. The restaurant paid $82,500 in July 2018 to settle the EEOC case.
In addition to the settlement, the restaurant must review and revise its discrimination and harassment policies. The EEOC will monitor the restaurant’s compliance with mandatory discrimination and harassment training for all of its employees.
Protection Under the Congressional Accountability Act
Texas Representative Henry Cuellar was accused of firing his acting chief of staff in October 2018 after she disclosed her pregnancy. If true, the firing would be a violation of federal law.
Although Capitol Hill employees are not protected by all federal statutes regarding employment, they are protected by the Congressional Accountability Act (CAA). The CAA’s reporting process has been widely criticized, however. It requires mandatory counseling and a 30-day cooling-off period. If neither of those rectify the situation, the aggrieved employee can request an administrative proceeding in front of a hearing officer or file a case in federal district court.
Representative Cuellar’s office stated: “[T]he office values its employees and conducts all personnel matters in compliance with the Congressional Accountability Act and applicable House Rules.”
Caregiver and Gender Discrimination
Much of the conversation regarding discrimination against women in the workplace centers around pregnancy discrimination. But a recent lawsuit brings to light discrimination against female workers after they give birth.
Nikki Columbus, a former editor at Parkett magazine, sued MoMA PS1 on the grounds of caregiver and gender discrimination because the museum rescinded their job offer to her after learning she had a baby between the time they offered her the job and the time she was supposed to begin working.
Ms. Columbus’s attorney explains, “This is a blatant example of the discrimination women face in the workplace. Protecting pregnant workers from discrimination matters little if employers can turn around and fire (or refuse to hire) women once they give birth. Just like sexual harassment, this type of discrimination prevents women’s advancement in the workplace and keeps women at an unequal position in the workforce.”
After Ms. Columbus received the job offer from MoMA PS1, she made arrangements with the museum to transition out of her role at Parkett. She requested the ability to work from home for a few weeks because she had just given birth to her child. Her contact at the museum asked, “Why didn’t you tell me this two months ago?”
A few days later, the museum wrote to Ms. Columbus and stated they were unable to meet her requested terms. When Ms. Columbus stated she still wanted the job, she was told that she “would not be able to perform the job as it was structured” and the offer was “no longer active.”
The complaint alleges: “Nothing about the position changed. Nothing about Ms. Columbus’s qualifications for the job changed. The only thing that changed was [MoMA PS1’s] awareness of Ms. Columbus’s new baby.”
$80,000 Pregnancy Discrimination Settlement
A 28-year-old job applicant filed a claim of pregnancy discrimination with the EEOC and received a settlement of $80,000 in May 2019.
The claimant applied for a job at Scribe-X Northwest, a medical documentation service. She passed the pre-employment screening tests and received a job offer. When she told the company she was pregnant, Scribe-X Northwest rescinded her offer. The CEO told her that she should have notified the company that she was pregnant earlier because they would not have hired her if they knew she was expecting a child.
In addition to the monetary settlement, Scribe-X Northwest must implement policies explicitly providing employees knowledge of their rights, train employees and management on anti-discrimination topics, and report to the EEOC on their continued compliance with the settlement.
Pregnancy and Sex Discrimination
There is limited case law on whether a male can bring a claim of employment discrimination under the Pregnancy Discrimination Act based on his partner’s pregnancy.
Recently, a Mississippi man committed suicide after being fired for accompanying his high-risk pregnancy wife to a pregnancy-related appointment. His estate filed a complaint against his employer. His estate alleged his termination was due to his sex and his wife’s pregnancy.
A 2007 case held that in order for a male to properly bring an employment discrimination claim based on pregnancy, he must allege that he was discriminated against because of his sex. The estate argued that he was “treated less favorably than male employees whose wives were not pregnant.”
However, the court found that he must allege that he was fired because of his partner’s pregnancy and that a female would not have been fired because of her partner’s pregnancy.