Does being pregnant entitle someone to special treatment? I think most would unequivocally agree that yes, a healthy young man should give up his seat on the bus to a visibly pregnant woman, and it is courteous (although not yet required by social etiquette) to allow a pregnant woman in urinary distress to cut to the front of the ladies’ room line. Personally, I think it’s great when maternity and baby stores designate “expectant mother parking” right next to the legally-mandated disabled spaces, but I do not believe pregnant women should qualify for the handicapped placards that permit parking in the legally-mandated accessible spots. Much more controversial, however, is whether employers – public and private, large and small – should be legally obligated to suffer costs and inconveniences so that their pregnant employees can continue to work comfortably during their pregnancy.
This debate was raging when I was first pregnant in 2012. Many women I knew were instinctively opposed to being treated as disabled, especially since they felt their pregnancies did not hinder their work in any way. Others appreciated the acknowledgment and protection of their employment rights to balance out the strong pressure to demonstrate that they were still capable and committed to their jobs while pregnant and on maternity leave.
I knew that the 1978 Pregnancy Discrimination Act (PDA) was intended to protect pregnant workers from discrimination in the workplace by requiring employers to treat pregnant employees at least as well as other employees “not so affected but similar in their ability or inability to work.” This seemed reasonable and fair, but I soon learned that it is insufficient in itself as a legal protection for pregnant women in the workforce.
I found out I was pregnant while in the midst of job-hunting. In an effort to demonstrate my integrity and to establish a strong rapport with a future boss, I disclosed my pregnancy in final employment negotiations, only to have offer after offer rescinded shortly thereafter. I knew it was illegal, under the PDA, to not hire someone solely on the basis of her pregnancy (or intent to become pregnant someday), but I was given a myriad of related excuses – for example, that the job would require travel just around the time I was due to give birth, that it might be too stressful for me “in my current condition,” or paternalistic advice that I should consider a job with a better work/life balance. This treatment made me angry, but since I could not prove that I had been denied the job solely because of my pregnancy, I had no choice but to move on.
To obtain my current position, I followed legal advice not to disclose my pregnancy until I had completed the hiring paperwork. Rather than feel deceived, as I’d feared, my boss seemed genuinely excited about my imminent entry into parenthood and was fully supportive of my intention to take three months of unpaid leave just four months after starting work. Upon returning to work after maternity leave, my boss held sacrosanct my breast-pumping breaks and agreed to let me telework once a week to be closer to my son.
Many women are not so fortunate, however. In 2012, a CNN columnist cited examples of women who had lost their jobs due to pregnancy – one retail clerk because she wanted to drink water while working, and a nursing home attendant who could not lift heavy tables. These may be extreme cases, but they illustrate the disparity in treatment of pregnancy-related challenges and those faced by employees with temporary disabilities. For example, the Americans with Disabilities Act (ADA) requires an employer to make “reasonable accommodations” for a worker suffering from a “20-pound lifting restriction that lasts or is expected to last for several months” (citing regulations issued by the Equal Employment Opportunity Commission, EEOC, in March 2011). The columnist argued that “the ADA’s mandate to reimagine our social environment to accommodate historically excluded persons should encompass pregnancy” since childbearing women have traditionally been marginalized in the workforce.
Early in my second pregnancy, the EEOC narrowly agreed (via a 3-2 party line vote), on new ADA enforcement guidelines that define pregnancy as a workplace disability and provide examples of pregnancy discrimination. One excerpt:
“Adverse treatment of pregnant women often arises from stereotypes and assumptions about their job capabilities and commitment to the job. For example, an employer might refuse to hire a pregnant woman based on an assumption that she will have attendance problems or leave her job after the child is born. Employment decisions based on such stereotypes or assumptions violate Title VII. As the Supreme Court has explained, “[W]e are beyond the day when an employer could evaluate employees by assuming or insisting that they matched the stereotype associated with their group.” Such decisions are unlawful even when an employer relies on stereotypes unconsciously or with a belief that it is acting in the employee’s best interest.”
The new guidelines did not make headlines, but were controversial nonetheless. One Wall Street Journal columnist alleged that the EEOC’s interpretation of the ADA as protecting pregnant women was designed to create more business for employment law attorneys, who would, in turn, contribute to democratic campaigns in advance of the November election. Surrounded by employment law attorneys, I cannot say I am aware of any such surge in pregnancy discrimination claims. I know that employers have become more wary to avoid asking about pregnancy and parental status during job interviews, or mentioning them in performance reviews and employment decisions, but I do not think that is a bad thing.
Days before the EEOC issued its July 14, 2014 guidelines, the U.S. Supreme Court announced that it would hear Young v. United Parcel Service. Peggy Young was a UPS delivery driver when she became pregnant and was advised not to lift more than 20 pounds. Since UPS’ policy required drivers to lift up to 70 pounds, Peggy had to take an extended unpaid leave of absence, during which she lost her health insurance coverage. She went back to her old job after giving birth, but sued UPS for pregnancy discrimination under the ADA and PDA. Oral arguments before the Supreme Court on December 3, 2014 addressed the question of whether employers are required to provide the same work accommodations to an employee with pregnancy-related work limitations as to employees with similar, but non-pregnancy related, work limitations. The Obama Administration (via the Solicitor General and the EEOC) argued on Peggy’s behalf, but an adverse decision by the Court would effectively overrule the EEOC’s July 2014 guidance and require Congress to take action to amend the law to explicitly protect pregnant women (which the current Congress seems unlikely to do). We’ll have to wait and see …
Personally, I do think pregnant women and working moms deserve a little slack from employers – whether that be in the form of extra bathroom breaks, less strenuous physical duties, or the opportunity to work from home. Then it is up to the women to demonstrate that they are as committed and valuable as their non-pregnant, childless colleagues. Preggo Power!