by Emily J. Martin and Cortelyou Kenney, National Women's Law Center. Ms. Martin is the Vice President and General Counsel of the NWLC. Ms. Kenney is a Cross-Cutting Legal Projects Fellow at the NWLC.
Thirty-five years ago today, the Pregnancy Discrimination Act (PDA) was signed into law, remedying the Supreme Court’s 1976 decision in General Electric Company v. Gilbert which held that discrimination on the basis of pregnancy was not sex discrimination, but rather discrimination between pregnant and non-pregnant persons. Congress acted quickly to rebuke this analysis by passing the PDA, which recognizes what is obvious to most – that discrimination on the basis of pregnancy is unlawful discrimination on the basis of sex. The PDA also makes clear that women affected by pregnancy, childbirth, or related conditions must be treated at least as well as other employees “not so affected but similar in their ability or inability to work.” As a result of the PDA, once-common policies – such as forcing pregnant women off the job regardless of their ability to work – are no longer permissible.
Yet pregnancy discrimination still persists more than a generation after the PDA’s passage. This is in part because stereotypes about pregnant women persist in the workplace, despite the law’s protection. But even more troublingly, pregnancy discrimination also persists because some courts have read the language of the PDA narrowly, ignoring both its plain language and its intent while also limiting its protections for pregnant workers.
Specifically, courts have opened loopholes in the PDA that have too often left without protection those women who need temporary work accommodations because of pregnancy. Many women work through their pregnancies without any need for accommodation, but some pregnant workers, particularly those who work in more physically demanding or less flexible jobs, need some adjustments in work rules or duties. When their requests for reasonable accommodations – such as being allowed to carry a water bottle, refrain from climbing ladders, or avoid heavy lifting – are refused, pregnant workers must often choose between their paycheck and a healthy pregnancy even when their employers provide similar accommodations to employees who need them because of disability or injury.
Peggy Young delivered letters and packages sent by air for UPS. When she got pregnant after struggling with infertility and IVF, her doctor recommended that she not lift more than 20 pounds. She asked UPS, where she had worked since 1999, for a "light duty" assignment, so that she could continue working through her pregnancy.
UPS said no. It explained that its policy was to offer light duty assignments or "inside" jobs to lots of different kinds of workers who were temporarily unable to perform their regular tasks: workers who were injured on the job, workers with a qualifying disability under the Americans with Disabilities Act, workers who lose their commercial driving licenses because of an off-the-job injury, and workers involved in a car accident.
As a result, Peggy was put on unpaid leave with no medical coverage.
Sound illegal? It is, and has been since 1978, when Congress amended the civil rights laws to require employers to treat pregnant workers the same as any other worker who is similar in his or her ability or inability to do the job. The Pregnancy Discrimination Act of 1978 is supposed to guarantee that, if the boss offers any other class of temporarily disabled workers a benefit or accommodation – like light duty, extra bathroom breaks, access to water, or a modified schedule – pregnant workers are given the same treatment.
By Kathrine Jack, staff attorney at National Advocates for Pregnant Women
Abortion, Roe v. Wade and the extent to which fetuses should be afforded legal protection are key issues for many groups examining President Obama's first nominee to the Supreme Court, Judge Sonia Sotomayor. But as the court's decision last week in AT&T v. Hulteen illustrates, while public debate focuses on abortion and the rights of the fetus, we too often forget that the court has never fully recognized or protected the rights of pregnant women.
In Hulteen, Noreen Hulteen and three other women sued AT&T for reducing their pension benefits because they took time off work for pregnancy and childbirth. Two of the women were actually required by AT&T to take time off - a reflection of workplace practices at the time that presumed that all pregnant women were unfit to work or unwelcome because of their "condition." AT&T provides pension benefits based on a seniority system calculated based on years of employment minus uncredited personal leave time. Until the late 1970s, AT&T treated pregnancy and childbirth leave as uncredited personal time even though all other medical leave resulted in full service credit for the entire period of absence. Decades later, Ms. Hulteen and the other women learned that they were receiving a smaller pension benefit because of the uncredited pregnancy leave. The women argued that this calculation violated Title VII as amended by the Pregnancy Discrimination Act (PDA) in 1978.
The Hulteen majority opinion acknowledged that a company's failure to credit women for pregnancy leave taken today would be unlawful gender discrimination under the PDA. However, the court found that AT&T's practice was part of "bona fide seniority system" that, when adopted, "as a matter of law, as Gilbert held, was not gender-based discrimination." In other words, since pregnancy discrimination did not violate U.S. law before the PDA, AT&T was free to carry forward that discrimination in its current calculation of pension benefits.