Devi Rao, Fellow

This week, the EEOC held a public meeting on unlawful discrimination against pregnant workers and workers with caregiving responsibilities at which experts, including the National Women’s Law Center’s own Vice President and General Counsel Emily Martin, presented compelling testimony setting out the widespread and often blatant ways in which employers continue to unlawfully discriminate in the workplace. Members of the Commission expressed dismay, if not complete surprise, that nearly 35 years after the Pregnancy Discrimination Act (PDA) was passed in 1978, discrimination on the basis of pregnancy persists, in the words of EEOC Chair Jacqueline A. Berrien, “unnecessarily depriving women of the means to support their families.”

The PDA amended Title VII of the Civil Rights Act of 1964 to clarify that—duh!—employment discrimination on the basis of pregnancy is a type of sex discrimination. (Sounds obvious, right? Well, it wasn’t to the Supreme Court.) The PDA requires employers to treat women “affected by pregnancy, childbirth, or related medical conditions” the same “as other persons not so affected but similar in their ability or inability to work.” This phrase is important—the PDA defines the sole relevant point of comparison between pregnant and non-pregnant workers as the person’s ability to do the job. So what does this mean?

First, consider that pregnancy discrimination claims appear to come up—at least based on the caselaw—most frequently in jobs that require a lot of physical activity like running, lifting, moving, standing, or repetitive motion. Many of the pregnancy discrimination cases arise in jobs traditionally held by men, such as law enforcement and trucking (so, ironically, pregnancy discrimination compounds the existing barriers that women face when attempting to break into many high-paying male-dominated positions), while others appear in female-dominated, often low-wage work like nursing assistance, cleaning, and retail.

Last week, a federal appeals court in Georgia with a conservative reputation ruled in the strongest terms that “[a]n individual cannot be punished because of his or her gender-nonconformity. Because these protections are afforded to everyone, they cannot be denied to a transgender individual.”

In 2007, Vandy Elizabeth Glenn (who at that time went by Glenn Morrison) told her boss at the Georgia General Assembly’s Office of Legislative Counsel that she was planning on transitioning from male to female. He promptly fired her, after remarking that “it’s unsettling to think of someone dressed in women’s clothing with male sexual organs inside that clothing,” and describing a male in women’s clothing as “unnatural.”

In a unanimous opinion written by Judge Rosemary Barkett, the court held that “discriminating against someone on the basis of his or her gender non-conformity constitutes sex discrimination under the Equal Protection Clause” of the Fourteenth Amendment to the U.S. Constitution, and that “discrimination against a transgender individual because of her gender nonconformity is sex discrimination.”

This case is a huge step forward for LGBT rights—it will force many employers to think twice before they fire transgender workers for discriminatory reasons. And it sends a message to transgender men and women that they are legally protected from sex discrimination in the workplace. It also reaffirms the continuing importance of the Equal Protection Clause’s protection against discrimination on the basis of gender stereotypes today.