Pregnancy and Pink Slips: Yesterday, Today, NOT Tomorrow
Today marks the 35th anniversary of the Pregnancy Discrimination Act (PDA). Passed in 1978, the PDA amended Title VII of the Civil Rights Act of 1964 to make clear that the prohibition on sex discrimination in employment includes discrimination on the basis of pregnancy, childbirth, and related medical conditions.
Before the PDA became law, a woman's pregnancy was often greeted with a pink slip — the minute a woman started showing, her employer showed her the door. In the 1974 case of Cleveland Board of Education v. LaFleur teachers won a legal challenge to mandatory maternity leave policies that forced pregnant public school teachers out of work four to six months before their due dates. The Supreme Court held that a public employer forcing pregnant women out of work at an arbitrary date — that often coincided with when they started to show — violated due process. This was a crucial victory for women workers. But the Supreme Court's decisions in two other cases from that same time period, Geduldig v. Aiello and General Electric v. Gilbert, left pregnant workers unprotected and unequal.
In 1974, in Geduldig v. Aiello, the Supreme Court held that pregnancy was not a sex-based classification and therefore California was permitted to exclude pregnancy-related disability from its temporary disability benefits program under the Equal Protection Clause. In 1976, in General Electric Co. v. Gilbert the U.S. Supreme Court held that denying disability benefits to pregnant workers was also not sex discrimination under Title VII.
Not a moment too soon, in 1978, Congress passed the Pregnancy Discrimination Act, effectively reversing these holdings, by declaring once and for all that pregnancy discrimination is indeed sex discrimination. The PDA requires that employers treat pregnant workers the same as other workers who are "similar in their ability or inability to work."
A lot has changed since the 1970s, but too much remains the same. In the early 1970s, 43% of women were in the workforce. Today women make up almost half of the workforce, and four in ten American households with children under age 18 now include a mother who is either the sole or primary breadwinner for her family — this includes 8.6 million single mothers who are solely or primarily responsible for supporting their families. More pregnant women are working, and working later into their pregnancies than ever before, and these workers need clear protections from pregnancy discrimination.
Unfortunately, courts have often misinterpreted the PDA, weakening its protections. Thirty-five years after the PDA, pregnant workers who need workplace accommodations in order to continue safely working, such as avoiding heavy lifting, being able to sit during a very long shift, or staying off high ladders, are all too frequently denied these accommodations by their employers, even when accommodations are provided to other workers with similar limitations. While many pregnant workers will be able to continue working during pregnancy with no changes to their jobs, denying accommodations to pregnant workers who need them spells disaster for these women and their families.
Women who bring in doctors' notes requesting simple accommodations from their employers are being forced to quit, forced out on unpaid leave, and fired, instead of being accommodated. And when pregnant workers have sought help from the courts, courts have often sided with their employers, ruling that they are not obligated under the PDA to accommodate pregnant workers, even when employers accommodate workers with disabilities, on the job injuries and other workers with similar limitations on their ability to work. We believe these decisions are wrong, given the plain language in the PDA requiring employers to treat pregnant workers the same as others who are "similar in their ability or inability to work."
When it comes to pregnancy discrimination, it seems that some employers are stuck in a time warp — operating as though we're still living in the bygone era in which it was a-ok to greet pregnancy with a pink slip. In fact, over the last 10 years, pregnancy discrimination charges filed with the Equal Employment Opportunity Commission (EEOC) have increased by 35 percent. The denial of pregnancy accommodations hits low-wage workers the hardest, whose jobs are more likely to be physically demanding, inflexible, and hazardous.
It is time for Congress to do what the PDA intended. The Pregnant Workers Fairness Act (PWFA) is commonsense legislation pending in Congress that would provide pregnant workers with reasonable accommodations when they are needed to continue safely working during pregnancy. Modeled on the Americans with Disabilities Act, it would make unmistakably clear that pregnant workers have the same rights to reasonable accommodation as workers with disabilities. It would mean that pregnant workers would no longer face the impossible choice between having a safe and healthy pregnancy and keeping their jobs. What could be more commonsense than that?
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