Pregnancy discrimination claims on the rise

Posted: 7:00 pm Sun, March 14, 2010
By Steve Lash
Daily Record Legal Affairs Writer

The number of pregnancy-discrimination claims brought to the U.S. Equal Employment Opportunity Commission has climbed nearly 31 percent since 2005, outpacing the almost 24 percent rise in all job-bias claims brought to the federal agency during that span, according to the EEOC.

Several factors account for the sharp rise in Pregnancy Discrimination Act claims. These include greater employee awareness of their rights, managers not always respectful of the wishes of expectant employees, and a failing economy that has made employers quicker to fire and employees more willing to sue, say law professors and attorneys.

“Working women have a better awareness now that they are able to do a job even while pregnant,” said Deborah Eisenberg, who teaches employment-discrimination law at the University of Maryland School of Law in Baltimore. “For a lot of pregnant women, they can work right up until the day they deliver.”

But Candace Kovacic-Fleischer, a professor at American University’s Washington College of Law, attributed the increase to the many employers who presume that pregnant employees cannot do their jobs efficiently and must be reassigned — or fired.

“The workplace has not really accommodated pregnancy,” said Kovacic-Fleischer, who has written and lectured extensively on sex bias in the workplace, including pregnancy discrimination. And the federal Pregnancy Discrimination Act, in place for more than 30 years, “just has cracks,” she said.

But employment-law attorney Richard G. Vernon said the rise in pregnancy-bias claims reflects the overall increase in job-discrimination litigation as the national economy has soured.

Companies, facing record losses, are quicker to fire people, and laid-off workers, unable to find new employment, seek recompense from their former employers, said Vernon, who advises companies as co-chair of the employment and labor group at Lerch, Early & Brewer Chtd. in Bethesda.

“There’s less tolerance for people taking time off,” Vernon said of employers; and as for workers, “in an economy like this, if somebody is fired, if they can’t find another job, they’re desperate.”

The number of pregnancy discrimination claims the EEOC received rose annually from 4,730 in fiscal year 2005 to 6,285 in fiscal 2008, before ticking downward to 6,196 in fiscal 2009, which ended Sept. 30, the agency added in its most recent annual report.

By comparison, all job-bias claims the EEOC received in fiscal 2005 totaled 75,428, which climbed annually to 95,402 in fiscal 2008. That number, too, fell slightly in fiscal 2009, to 93,277 — a little under 24 percent, the agency stated.

“The employment lawyers are enjoying this terrible economy,” Vernon said.

Paternalistic attitudes

The EEOC does not break down the statistics into types of discrimination, such as termination or involuntary reassignments.

Unlike most forms of job-related discrimination, reassignment often results not from bigotry but from an employer’s attempt to protect the worker and her unborn child from the hazards of her regular duties.

“Many of them think they’re doing the right thing,” attorney Karen J. Kruger said of employers who transfer women to less stressful work upon learning of their pregnancies. But such reassignments are rooted in “paternalism, which is really a form of sex discrimination,” added Kruger, who advises police departments in complying with the Pregnancy Discrimination Act.

Attorney Marc R. Engel, who counsels companies, said the best way for employers to comply with the law is to treat a pregnant employee the same way they would treat a man with a similarly debilitating condition that does not necessarily affect his work.

“Employers have to be mindful that they’re not treating their pregnant employee any differently than their male employee with a back injury,” said Engel, who co-chairs Lerch Early’s employment group with Vernon.

However, the Pregnancy Discrimination Act does not require an employer to accommodate an employee’s pregnancy unless it already accommodates other workers with a similarly temporary condition. And because pregnancy is unlike any other medical condition, such a similarly situated employee, or “comparator,” might not exist, Kovacic-Fleischer said.

“Since pregnancy is unique, it’s hard to find that comparator,” she said.

Congress enacted the PDA in 1978 as an amendment to Title VII of the 1964 Civil Rights Act, which bans job discrimination based on sex, as well as race, color, religion and national origin. The PDA states that “the terms [defining discrimination] ‘because of sex’ or ‘on the basis of sex’ include, but are not limited to, because of or on the basis of pregnancy, childbirth, or related medical conditions.”

Glendora Hughes, general counsel for the Maryland Commission on Human Relations, said pregnancy-based work restrictions belong to a bygone era when expectant mothers were believed to be incapable of normal, daily activity, lest they harm themselves or their unborn.

“The old wives’ tales in terms of women’s abilities [while pregnant] have gone out the window,” said Hughes, whose agency represents employees alleging job discrimination by a Maryland company.

Hughes said that companies, for the most part, have dispensed with the “paternalistic attitudes” that pregnant women must be reassigned to light-duty work, regardless of whether they can still do their regular jobs.

“The rule is, the decision should be made by the woman and her doctor,” Hughes said.

The commission does not keep track of the number of pregnancy-discrimination claims brought to the agency, but Hughes said she recalls very few, if any, having gone to litigation in recent years. Some may have been resolved through mediation or settlement, she said.

“It seems that employers have pretty much gotten it,” Hughes said. “Employers have policies in place and try to make sure those unlawful decisions aren’t made.”

But Kovacic-Fleischer, of American University, said pregnancy discrimination remains prevalent. That prevalence is not reflected in statistics regarding filings and resolutions, because they do not account for unlawful-termination claims not brought due to the difficulty employees have in proving they were dismissed because of their pregnancy.

“It’s so easy [for an employer] to say, ‘I’m firing you because you’re tired,’” Kovacic-Fleischer said.

Model policy

Kruger, the police department adviser, said law enforcement is an industry where pregnancy bias often manifests itself in involuntary reassignments to less hazardous work.

For example, women patrol officers have been given desk jobs, or even sent home to rest, after disclosing their pregnancies, Kruger said. Such reassignments, though temporary, can cost women officers their seniority, which is often tied to promotions, pay and pensions, Kruger added.

“Most police chiefs are men,” said Kruger, of Funk & Bolton P.A. in Baltimore. “Pregnancy makes men nervous.”

“They [the chiefs] unwittingly take on a patronizing role,” she added. “Sometimes an employer can overstep the appropriate bounds of regulating an employee’s life simply because she is pregnant.”

These pregnancy-based reassignments “can have negative career consequences that are not experienced by men,” she added.

To protect pregnant officers, Kruger is helping to draft a model policy for the International Association of Chiefs of Police to help law enforcement agencies comply with the Pregnancy Discrimination Act.

The draft policy calls on the agencies to “allow an officer to remain working in a full-time capacity performing full duty assignments, in combination with modified duty assignments, until such time that the officer’s treating physician … recommends solely or in consultation with the department’s medical advisor a leave status for the employee or the employee independently requests leave due to her medical condition.”

The draft policy — and the law — stand for the proposition that “the woman can make her own educated choice instead of the employer imposing the choice on her,” Kruger said.

That standard is hardly new; as Kruger noted, the Supreme Court said as much in its 1991 ruling in United Automobile Workers v. Johnson Controls Inc., when it struck down a company’s “fetal-protection” policy that prohibited women of child-bearing age from working in an area that would expose them to lead.

In its decision, the court held that the company’s policy — designed to protect the unborn from congenital abnormalities — violated the PDA by not leaving the choice to the woman.

“Whether an employment practice involves disparate treatment through explicit facial discrimination does not depend on why the employer discriminates but rather on the explicit terms of the discrimination,” Justice Harry Blackmun wrote for the majority.

Kruger also cited the high court’s 1996 ruling that Virginia’s exclusion of women from the Virginia Military Institute violated their constitutional right to equal treatment under the law.

Justice Ruth Bader Ginsburg wrote for the majority in United States v. Virginia that “‘inherent differences’ between men and women, we have come to appreciate, remain cause for celebration, but not for denigration of the members of either sex or for artificial constraints on an individual’s opportunity.”

Pregnancy is one of those “celebrated differences” that should not constrain a woman’s opportunity, Kruger said.

‘A delicate dialogue’

Engel, the employment attorney, agreed that employers, no matter how anxious they might be regarding a pregnant employee’s ability to work, should wait for the worker to approach them about any changes in work assignments, lest they run afoul of the PDA.

“It’s a very delicate dialogue,” Engel said of the discussion between a manager and a pregnant employee about a potential change in job duties. “It’s better if that dialogue starts with the employee rather than the employer.”

Though they should wait for the worker to initiate any reassignment discussion, employers should not feel restrained in congratulating an employee who is expecting or in asking how she feels, Engel said.

“I don’t think that’s out of bounds at all,” he added.

In fact, failing to acknowledge an employee’s pregnancy could make the worker uncomfortable and unwilling to seek temporary reassignment if the need arises as her delivery date approaches, Engel said.

Employers should always foster “an atmosphere that’s healthy and constructive,” he added.