By: Robert Bryson

In 1978, the Pregnancy Discrimination Act was signed into law. It amended Title VII of the Civil Rights Act of 1964 to prohibit discrimination “on the basis of pregnancy.” (see Section 701(k)). The Act prohibits discrimination “on the basis of pregnancy, childbirth, or related medical conditions.” (Id.). Unfortunately, the Pregnancy Discrimination Act of 1978 hasn’t prevented employers from Wal-Mart to Merck from discriminating against and punishing employees who are pregnant or who have recently given birth.

According to a New York Times (paywall) report published on June 15, 2018, women still lose professional opportunities the moment they become pregnant. Moreover, a 2014 University of Massachusetts-Amherst study found that women suffer a four percent (4%) penalty to their wages for each child while men receive a six percent (6%) bump for each child. Furthermore, a study published by the Census Bureau found that spouses who start their careers at similar periods and experience levels have comparable salaries. But, when their first child is born, the father’s salary begins to diverge from the mother’s salary significantly, averaging a $25,000 gap.

A commonly heard critique of these reports and studies is that women choose to leave the workforce or reduce their commitment, which explains the reduction in wages and benefits. However, that critique oversimplifies the problem. Women who choose to work at the same level often suffer setbacks in their career. The Census Bureau researchers acknowledge that some of the gap is due to maternity leave and reduced hours, however, those factors alone cannot explain the disparity in salaries between mothers and fathers.

The New York Times article examined several women to illustrate the widespread discrimination pregnant women continue to face. The article discussed an Equal Employment Opportunity Commission complaint filed against Glencore (a large commodities trading firm) by one of its most senior women; class action lawsuits against Merck and Novartis; UPS; and Wal-Mart. The discrimination faced by these women was all different but was united by a common thread – being pregnant.

Women in management and professional positions were denied promotions, bonuses, and often demoted. Women in physically demanding jobs, such as delivery, are often denied workplace accommodations. First, we need to back-up. If you’re working and are injured, suffer from a disability, or are pregnant, you may request your employer provide you with reasonable accommodations. “Reasonable accommodations” is the cornerstone legal precept which protects injured workers, persons with disabilities, and pregnant women from being summarily fired for being unable to perform their job similar to their unencumbered peers.

Pregnant women are entitled to “reasonable accommodations” to reduce the risk of injury and to allow them to continue working in a different capacity until they can return to regular duty. However, in 2006, UPS disagreed. Ms. Peggy Young was an early-morning driver for UPS. When she became pregnant in 2006, she requested light-duty, which UPS denied. She eventually took unpaid leave without health insurance. Despite UPS’ denial of Ms. Young’s request, it routinely granted accommodations for drivers who were injured, permanently disabled, or who had lost licenses due to driving while intoxicated.

Ms. Young sued UPS and in 2014 the U.S. Supreme Court heard her case. Ms. Young lost both her cases in district court and the Fourth Circuit Court of Appeals because, at the time, UPS could define its reasonable accommodations as those granted to other “similarly situated workers.” UPS chose workers injured on the job and showed evidence that it denied light-duty requests and therefore it treated Ms. Young no differently than any other employee. However, in a 6-3 decision, the Court held that the key inquiry was “whether the nature of the employer’s policy and the way in which it burdens pregnant women shows that the employer has engaged in intentional discrimination.” (Peggy Young v. United Parcel Service (2014) 575 U.S.         , 135 S.Ct. 1338). The Court went on to impose a balancing test to determine if an employer was in violation. However, the Court stopped short of imposing protections for pregnant women.

Unfortunately, Young v. UPS did not settle the question of reasonable accommodations for pregnant women. The NYT article also highlighted a suit against Wal-Mart. An employee who was three months pregnant had experienced bleeding and was told by her doctor that she should avoid heavy-lifting or she could risk a miscarriage. But when she brought the issue to her supervisor, her request was denied. Fearful of losing her job and unable to find a new one while she was pregnant, she remained at Wal-Mart. A few weeks later, she felt a sharp pain and returned to the hospital for treatment. After this, Wal-Mart finally granted her request for light duty. However, after giving birth, she requested maternity leave and was fired three days later. She is now suing Wal-Mart and seeking to certify her case as a class action. On September 18, 2018, the EEOC filed a lawsuit against Wal-Mart alleging that it denies pregnant women reasonable accommodation and fires them for requesting unpaid leave.

Sadly, the battle in the United States to empower mothers is still being fought. Women all over the country are routinely discriminated against, lose promotions, and are denied reasonable accommodations.