“The Pregnancy Discrimination Act (PDA) forbids discrimination
based on pregnancy when it comes to any aspect of employment…
~ EEOC

In the early 1950s, Betty Friedan was fired from her job because she was pregnant. A decade later her book, The Feminine Mystique, launched the second wave of feminism and the Women’s Movement of the 1960s and ‘70s, which resulted in many advances for women on the home front and in the workplace, including the Pregnancy Discrimination Act (PDA) of 1978. (The first wave of feminism culminated in the 1920 landmark passage of the Nineteenth Amendment to the U.S. Constitution, which granted women the right to vote.)

But despite women’s advancements in the workplace over the past half-century discrimination persists, especially against pregnant women.

The Pregnancy Penalty

In a recent edition of Melissa Harris-Perry on MSNBC, this hot topic was discussed. Among the panelists was Dina Bakst, Co-President of A Better Balance, a legal advocacy group that recently published a report on the issue, entitled The Pregnancy Penalty. According to the report, “The pregnancy penalty impacts workers across the economic spectrum.”  But what does that mean?

On the program, Vice President and General Counsel at the National Women’s Law Center Emily Martin commented, “…this impacts low-wage women the most, women who are in inflexible jobs where there’s a culture of employers saying, ’no we’re not going to make any changes for you if you need them, it’s what we need not what you need.’ So women who work in retail, as cleaners, as nursing assistants, in restaurants are put in this terrible situation where they’re being asked to choose between their job and the health of their pregnancy, which is a decision nobody should have to make.”

Ms. Harris-Perry points out another horrific angle of workplace pregnancy discrimination, and that is how some companies that refuse to provide a temporary workload modification or reduction to accommodate pregnant women — usually low-wage workers — who simply cannot afford to lose their jobs prompt them to stay on the job and perform work that is potentially harmful.

Wal-Mart reacted to the growing outcry from women’s groups and employees against its pregnancy policy by improving them, but the feeling is it isn’t enough.

Clearly this is a problem for women who work in such jobs, but is there a “pregnancy penalty” for women in other jobs, industries and economic strata, as well?

Executive and Professional Women

When Marissa Mayer was hired as CEO of Yahoo it was considered by some to be a landmark, a real breakthrough for women that a major corporation would hire a woman to be its CEO when it was known that she was six months pregnant. But, others question whether this is an anomaly. In this particular situation, Ms. Mayer was a proven powerhouse in the industry and by many accounts Yahoo might have needed her more than she needed it. She was in a great position of strength.

But not all executive and professional women possess that kind of power and authority to ensure that their pregnancies won’t negatively impact their jobs or careers.

Then there’s the flip side, in which former Mets baseball team executive Leigh Castergine is suing the organization for firing her for being pregnant and unmarried. What century are we living in, you might ask.

Attorney-mediator and arbitrator Victoria Pynchon says that “pregnancy discrimination is rampant. I recently negotiated the settlement of a dispute between a Harvard-trained biochemist and an employer who fired her…”

Discrimination against pregnant women can be both overt and covert; this especially can be true for those in executive and professional positions. For example, many women are perfectly fine well into their pregnancies to travel (unless otherwise advised by their doctors) and handle normal business situations, but they might be excluded or strongly discouraged from taking a business trip or attending an event, or eliminated from making major decisions, with the excuse that pregnant women are too delicate physically or lack mental capacity.

Likewise, continual joking about a pregnant colleague’s “delicate condition” (read: diminished abilities), disguised in a faux clubby approach or insincere show of excessive concern, creates a false perception that undermines her reputation. And, pernicious efforts to restrict her participation and the appearance of having to cover for her can inflict damage to her self-confidence, performance and subsequent advancement.

I find Sheryl Sandberg’s story of how she spoke up for herself and all pregnant women when she was a pregnant executive at Google illustrative of how essential it is for women to “lean in” to leadership roles in corporate America and in government. Although many men understand the issue and are sympathetic and supportive, it takes those who actually understand and experience pregnancy and who can empathize with other pregnant women to make the necessary changes to accommodate their gender, which comprises half of all workers and is well-established in the workplace. The workplace is no longer exclusively a man’s world and should not look or feel as though it is.

Women in the Middle

While executive women grapple with their share of pregnancy discrimination, they at least have some clout to deal with and counter it. This is not always the case for the majority of women who hold certain white collar and blue collar jobs in the mid-range income stratum. There is a vast array of companies and jobs that employ these women in the U.S., and the treatment of pregnant women who work in this arena varies.

In general, women know that pregnancy can inhibit their ability to hold on to their jobs and careers. Too many women are forced to hide or deny their pregnancies when applying for jobs or trying to hold on to them.

As stated, experiences vary depending on company policies and practices, the position and the manager. My own workplace pregnancy experience, which occurred after the passage of the PDA, involved working until two days before I delivered my daughter (today, 88% of first-time working mothers work until the end or near the end of their pregnancies, either due to commitment to career or need of a paycheck). As an executive assistant whose manager had recently left the company, I took my six-weeks of paid leave and an additional six and half months of unpaid leave to bond with and enjoy my baby full time (of 185 countries only the U.S. and Papua New Guinea do not have paid leave for pregnant women).  After that, I returned to work and my company assigned me to a comparable position. From there, I gained upward mobility in my career. I was fortunate.

In contrast, a close friend of mine who was the assistant to the sales director of a major publishing house became pregnant prior to the passage of the PDA. She planned to work up until her delivery date, but a few months before her due date her manager informed her that her services were no longer needed and that her employment was being terminated. The explanation was that they could not hold her job and had hired a replacement who would be starting immediately. At that time, there was little recourse to challenge such employer decisions.

Where you live is also an important factor. Even with a federal legal standard in place, laws vary by state that can affect pregnant women for better or worse. Employers frequently come up with other, valid, reasons to dismiss a pregnant worker, such as the company is downsizing or the worker is underperforming. Often, the discrimination is very subtle and seems reasonable. And although lawsuits by pregnant women against their employers are on the rise, initiating legal action remains challenging, time and energy consuming and expensive for a single worker. And, although class actions sometimes bring about social change, monetarily they usually benefit the attorneys more than the litigants.

When Actresses and Models Become Pregnant 

An added challenge to staying employed while pregnant is when your livelihood depends largely on your looks, as is the case with actresses and models. We can recall times in which characters in our favorite TV shows have been cleverly disguised when the actresses who played them became pregnant in real life. Remember Jane Leeves in Frazier; Courtney Cox in Friends; and Traylor Howard in Monk, just to name a few? And, who can forget the famous story arch of I Love Lucy‘s pregnancy when Lucille Ball’s pregnancy was featured in the show? But, there’s a dark side, as well, as evidenced by Hunter Tylo’s lawsuit in 1997 when she was fired after becoming pregnant while appearing in the TV series, Melrose Place.

In the modeling profession, two former models who appeared on The Price Is Right have sued the show for pregnancy discrimination, while supermodel Lara Stone was “cancelled at the last minute for a shoot” due to her pregnancy when she was only three months along.

Millennials Encounter Pregnancy Discrimination

After decades of pregnancy discrimination against their mothers and grandmothers, this reality has arrived at the door of the Millennial Generation. Having worked toward women’s rights and equality for nearly a half-century, and as the parent of a Millennial, I find this occurrence to be both heartbreaking and frustrating. To make things worse, I’ve come across an article in which it’s suggested that perhaps there is too much protection for women for their own good. (That noise you hear is probably the echo of my scream when I read this!) However, the law firm of Akeel & Valentine make what I consider to be the reasoned counter-argument to that dangerous idea.

A Global Problem

Women work in all kinds of jobs the world over, making pregnancy discrimination a global workplace issue. In Africa, Asia, Australia, Europe, Israel, the U.K. and South America workplace pregnancy discrimination is alive and well, despite laws to protect women. It will take, among other actions, a unified global public outcry to trigger the change that is needed.

On To Congress and the Supreme Court

The Great Recession, which is still affecting companies and individuals, has brought about a resurgence of the issue of pregnancy in the workplace to the forefront of our consciousness, in part because it negatively affects the U.S. economic recovery.

Armanda Legros, who appeared on the Melissa Harris-Perry segment, testified before a Senate Committee on Health, Education, Labor & Pensions regarding her experience, and a group of Democratic senators and representatives introduced the Pregnant Workers Fairness Act (H.R. 1975).

Former UPS driver Peggy Young is taking her pregnancy discrimination case all the way to the Supreme Court, as described in this Mother Jones article. This potential landmark case is creating the unusual situation in which people and organizations on both sides of the issue of choice are on the same side in filing briefs in support of Ms. Young’s case.

The differences between the Legros and Young cases hinge on the wording of the PDA, which states, “…women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes, including receipt of benefits under fringe benefit programs, as other persons not so affected but similar in their ability or inability to work and nothing in section 703(h) of this title shall be interpreted to permit otherwise.” In Ms. Legros situation, her former company did accommodate other workers who had temporary disabilities, but in Ms. Young’s case, UPS stated that it did not. As reported in the Mother Jones article, a brief filed by Americans United for Life on Ms. Young’s behalf, reads, “this case requires a determination about the meaning of pregnancy discrimination itself: that is, whether employers must treat pregnant women as well as the employees who receive the greatest accommodations, or whether they may treat women as badly as non-pregnant employees who receive the fewest accommodations.” If that latter interpretation is the one with which the Supreme Court agrees, then women may have lost a battle but they might win the war if a losing decision prompts new legislation to protect pregnant women in the workplace.

Meanwhile, the plot thickens, according to a story in the Washington Post, as UPS announces a change in its policy regarding injured and pregnant workers. How this reversal will affect the Supreme Court case remains to be seen.

To help both workers and employers, the U.S. federal government this year issued guidelines to help employers better interpret the PDA. However, if these guidelines do not help to stem the tide of pregnancy discrimination, stronger protection measures will have to be put in place.

And, speaking of Congress, in late-breaking news, apparently Representative Tammy Duckworth, who is in the late stages of her pregnancy and cannot travel, has been denied a proxy vote in the upcoming leadership and ranking member elections.

It’s Not Just a Woman’s Issue

Pregnancy discrimination often impacts husbands and partners and their children, as well. When a man whose pregnant spouse — who works to help support the couple or family or is the sole breadwinner — is the victim of pregnancy discrimination, he is impacted. In that case, it’s referred to as Family Responsibilities Discrimination (FRD). A job loss for a woman can mean the loss of health insurance, which can have a devastating effect on the whole family. A man whose wife is putting him through school might have to ditch his plans if she is fired because she is pregnant, or they might lose their house. Even when both spouses or partners are working, they often depend on the woman’s employer-sponsored health insurance.

Change Must Occur

A tipping point has been in the offing for decades and now it has come into clear focus. In 2012 women comprised 47% of the U.S. workforce and that number is expected to increase 7.4 percent by 2020. And, the fact that more women than men are earning degrees indicates that the sheer numbers of women will propel them into more leadership positions. Therefore, it’s imperative that the old model of the workplace be replaced with a modern model that recognizes women’s powerful presence and contributions. Replacing foolish discrimination policies with practical ones that accommodate the various stages of a woman’s life — in particular pregnancy and child-rearing — will enrich not only the workplace, but society, the economy and the quality of people’s lives. To reiterate, men should no longer be considered the dominant force in the workplace, which must adjust to acknowledge the overwhelming numbers of working women.

Change can begin with acknowledgement that there is a problem; and employers must become part of the solution instead of remaining part of the problem. And this should begin without further delay. As Sheryl Sandberg said in her commencement address at Harvard University this past May, “Our expectations are too low; eventually needs to become immediately.” I agree.

Until next time,

Jeanne