GETTING FIRED BECAUSE OF PREGNANCY IS ILLEGAL
The New York Times has a long article today about pregnancy discrimination and it is certainly worth reading with one caveat. While it is informative, I don't think it's entirely correct.
It starts off with this:
HERE’S a pop quiz: Which of the following would violate federal employment law?
1. Laying off a pregnant woman.
2. Laying off a woman on maternity leave.
Pencils down. The answer is “neither.
I hate to disagree with the NY Times, but I think it's more accurate to say "it could be".
It's quite possible that laying off someone who is pregnant or on maternity leave is illegal under the Pregnancy Discrimination Act and to suggest otherwise is a bit misleading.
Just to set the record straight, the Pregnancy Discrimination Act, ("PAD"), which was an amendment to Title VII of the Civil Rights Act of 1964 provides that:
- An employer cannot refuse to hire a pregnant woman because of her pregnancy
- Pregnant employees must be permitted to work as long as they are able to perform their jobs
- Discrimination on the basis of pregnancy, childbirth, or related medical conditions is unlawful sex discrimination under Title VII
As I have written about before, times of workforce reductions unfortunately create settings where discrimination is rampant. It is an inescapable truth that when managers are given discretion to terminate employees, some bias may come into play. It is also a fact that EEOC claims are on the rise. When managers are given the opportunity to let people go, it is an opportunity to discriminate for:
- younger managers who don't like or who are uncomfortable with the "old timers" and replace them with younger cheaper workers
- men who think women should be at home instead of work
- whites who don't like blacks and other minorities
What's also true is that women who are terminated when they are pregnant can prove discrimination just like anyone else with a combination of proof showing:
- A difference of treatment between the pregnant employee and a similarly situated non-pregnant employee
- Remarks which show prejudice against pregnant women or working mothers
- Statistical disparity
- The reason given for the discharge is not credible along with a prima facie case of discrimination
- Circumstantial or direct evidence a motivating factor for the termination was pregnancy related
No doubt, there are a host of problems with the Pregnancy Discrimination Act. Gillian Thomas of Legal Momentum and Joanna L. Grossman of Hofstra University School of Law recently published an excellent article about this topic. As the authors point out:
Pregnancy discrimination claims have been steadily rising in the last ten years, at a faster rate than other types of discrimination claims. The rise in claims -- and the millions of dollars paid out in response -- suggest the persistence of unlawful treatment of pregnant women at work.
The article goes on to illuminate the many gaps and obstacles in current law faced by the pregnant woman whose job duties may conflict with pregnancy's physical effects. It's a must read for anyone trying to maneuver the legal maze of the PDA.
But while it may not be easy to prove discrimination, there are many cases in which women who have been discriminated against because of their pregnancy have won. The Sixth Circuit Court of Appeals case of Ensley-Gaines v. Runyon spells it out:
As recognized by the United States Supreme Court, '[t]he second clause [of the PDA] could not be clearer: it mandates that pregnant employees ´shall be treated the same for all employment-related purposes' as nonpregnant employees similarly situated with respect to their ability to work'"Int'l Union v. Johnson Controls , 499 U.S. 187, 204-05 (1991)
Women make up half of the workforce and 85% of working women will become mothers at some point in their working lives. Last year the number of pregnancy discrimination charges filed with the Equal Employment Opportunity Commission was up 50%. Certainly pregnancy discrimination is a huge issue for working women and their families who suffer the affects of an unexpected job loss.
I do agree with the NY Times article in this respect: If you believe that you have been discriminated against because of pregnancy, contact an employee rights attorney or the EEOC and get the proper advice -- and don't wait long.
Image:sknutrition.wordpress.com
