Pregnancy bias claims decline

The number of pregnancy discrimination charges filed with the U.S. Equal Employment Opportunity Commission in Maryland fell 24.7 percent from fiscal 2010 to 2013, more than double the national rate of decline over that period.

Although it’s difficult to pinpoint the reasons for the decrease, employment law experts and attorneys said greater awareness among employers about what qualifies as pregnancy discrimination, along with a healthier economy, could account for some of the decline.

“More employers are taking affirmative steps to accommodate pregnant employees,” said Elizabeth Torphy-Donzella, an employment attorney with Shawe Rosenthal LLP in Baltimore. “Employers that are ahead of the curve will take action to address that legal change they see coming.”

In 2010, 113 pregnancy discrimination charges were filed with the EEOC in Maryland, a figure that fell to 85 by 2013. Nationally, 4,029 were filed with the EEOC in 2010, decreasing 12.1 percent to 3,541 by 2013.

Part of the overall trend could be explained by the surge of discrimination charges during the recession, said Margaret Johnson, director of the University of Baltimore School of Law’s family law clinic and co-director of the school’s Center on Applied Feminism. When the economy suffers, people have fewer options for employment and may be more likely to dispute a termination.

Kathleen Cahill, of the Law Offices of Kathleen Cahill LLC in Towson, said she hasn’t noticed a significant change in the number of pregnancy discrimination-related claims brought to her office.

However, Cahill said she is often able to work out a resolution without taking the case to the EEOC. Particularly in cases where pregnant employees have been terminated, she said, it’s crucial to act as quickly as possible.

“They can’t wait six months or a year or a year and a half,” she said. “If they’re showing, the odds of getting employment at all in their pregnancy are slim to none.”

Uncounted claims

Even with the recent decrease in charges, thousands of pregnancy discrimination claims are still filed nationally each year.

According to the EEOC, the most common reasons for the charges have remained relatively similar over the last decade. Allegations from employees claiming they were fired over their pregnancy top the list, along with claims of harsher discipline, suspension and forced leave for pregnant employees.

“I would say a very common claim is someone who is hired, announces she is pregnant and is terminated,” said Torphy-Donzella, who represents management in employment litigation. “The question is, did the employer feel like they hired someone who wasn’t honest about their ability to fulfill the job requirements.”

Cahill, the Towson employment lawyer, said she’s also noticed a trend of younger workers — who are often more used to sharing their personal lives at work — who are fired after announcing their pregnancies.

“Some employers, it’s going to be fine and they appreciate an early heads-up, but there are still employers where they’re going to misuse that information,” Cahill said. “A woman thinks she’s sharing the most wonderful development in her life’s history, and lo and behold, her career’s in jeopardy.”

Like many civil cases, most employment discrimination claims don’t make it to the litigation stage, and are instead settled or dropped, Cahill said.

“There’s a lot of junctures in the process where cases get cut — they’re settled through mediation, or investigated with an unfavorable outcome, and then those with the ‘right to sue’ letter, some end up being litigated, and some are not,” she said.

Torphy-Donzella estimated 95 percent of civil cases never make it to court.

“The litigation process is long. All along the way there are opportunities and incentives to settle,” she said.

What’s reasonable?

The issue of pregnancy discrimination will make its way to the national spotlight later this year, as the U.S. Supreme Court agreed to hear arguments in Young v. U.P.S., a case involving a UPS package-delivery driver in Maryland who was denied light-duty work during her pregnancy. The court will hear argument in December.

Last year, partially in reaction to Young, Maryland passed a law requiring employers to provide reasonable accommodations for disabilities due to pregnancy as long as they do not amount to “undue hardship” for the employer.

The state law does not define what constitutes an undue hardship.

This summer, the EEOC released a detailed set of guidelines for the federal law, the 1978 Pregnancy Discrimination Act, with examples of reasonable accommodations. For example, a pregnant employee whose doctor has restricted the amount of weight she can lift might be assigned the same light duty the employer would offer an employee with a back condition.

The new guidelines do not change laws already in place but rather are intended to help employers comply with the law by detailing examples of specific situations pregnant workers may encounter and stating what qualifies as a discriminatory act.

Because the guidelines spell out examples of situations in which employers must offer accommodations, Johnson said she doesn’t expect the release of the guidelines to result in a rash of new lawsuits.

“Employers are used to doing reasonable accommodations,” whether they’re for employees with religious restrictions or disabilities, Johnson said. “It’s just being offered to a new type of employee — a pregnant woman. I would hope that compliance would be high.”

The guidelines also include a list of best practices for employers, such as focusing on cumulative work experience rather than uninterrupted work experience when comparing two people for hiring or promotion purposes, and reviewing the necessity of policies like mandatory overtime or fixed hours that limit employee flexibility.

With the new guidelines to refer to, Johnson said, employees who feel like they’re being discriminated against will have an easier time of judging whether their claim is actionable, and employers have a readily available resource to make sure they’re not violating the law.

“The whole idea of guidelines is to help correct the workplace before litigation,” Johnson said. “It should make employers realize what they need to do to protect against discrimination in the workplace.”