Employers trying to do more with less are “concerned about getting more out of their employees and are making assumptions that women with young children will not be able to give as much as men can,” said Susan Ritz, a partner at Ritz, Clark & Ben-Asher in New York City, who represents employees.
“We’re seeing a steady diet of [claims],” agreed Sharon Vinick, a partner with Levy, Vinick, Burrell, Hyams in Oakland, Calif.
Two cases she is currently handling are typical. One involves a woman whose job was suddenly eliminated after she informed the company she was taking maternity leave under the Family Medical Leave Act.
In the second case, Vinick’s client claims she was “performance-ed out” right after announcing her pregnancy.
Even more common, Vinick said, is discrimination after women return from FMLA leave, such as sudden negative performance reviews after years of strong ones.
Plaintiffs’ lawyers also say they are noticing more claims from women pregnant with their second child.
“For executives or higher paying jobs, employers assume a woman with two children will either be less dedicated to her work or that she may quit, so they pull back on opportunities,” said Katherine Greenberg, staff attorney with the Employment Law Project of the Legal Aid Society in New York City.
An uptick in pregnancy bias claims was confirmed during EEOC hearings in Washington last month spotlighting the issue.
An EEOC attorney testified that the agency has resolved pregnancy discrimination cases for more than 52,000 women in the past decade, with a total payout of $150.5 million in damages. According to EEOC statistics, last year the agency resolved a record number of cases.
Intersection of laws
The challenge for both sides of the bar is that pregnancy discrimination cases meet at the crossroads of several statutory protections — some old, some very new, with plenty of grey area between them.
The Pregnancy Discrimination Act, passed in 1978 as part of Title VII, requires that employers treat pregnant women the same as other workers when considering their ability or inability to work.
But an area of continuing dispute is whether a pregnant plaintiff must point to a similarly situated person and, if so, who qualifies as one.
“Title VII requires an employee prove that [the illegal] treatment was ‘because of sex.’ … Courts often say there is no cause of action if the plaintiff can’t point to a comparator,” said Joan C. Williams, a law professor and founding director of the Center for Worklife Law at the University of California Hastings College of Law in San Francisco.
“Some courts say a non-pregnant woman is not enough and the plaintiff needs to find a similarly situated man, which is pretty close to requiring a plaintiff to [find a comparator who is] a pregnant man,” Williams said.
Although pregnancy itself is not a disability under the Americans with Disabilities Act, plaintiffs’ attorneys can make out a claim under the ADA if their clients have symptoms other than those of a normal pregnancy.
“If I have a client who has a completely normal pregnancy and is told she can’t have a promotion because the employer doesn’t think she can focus on her job because she’s running to the bathroom all the time, then I’m not bringing a disability case,” Ritz said. “On the other hand, if I have a client who has pregnancy-induced hypertension and she needs to take breaks all the time — a form of reasonable accommodation — unless the employer can show undue hardship, I have an ADA case.”
But the more recent ADA Amendments Act, or ADAAA, expanded the definition of disability to include temporary disabilities, and some lawyers see room for argument that symptoms of pregnancy require reasonable accommodation, such as light duty assignments.
“What that says to me is if an employer is making a modification to a guy who injured his back on the job and can’t lift more than 20 pounds, then it has to accommodate a pregnant woman [who] occasionally needs some help lifting more than 20 pounds, because they have to treat pregnant employees the same [under the Pregnancy Discrimination Act],” said Emily Martin, vice president and general counsel of the National Women’s Law Center in Washington, D.C., who testified at the EEOC hearing.
She noted that employers will often argue, sometimes successfully, that light work restrictions are only for workers whose injury occurred on the job and therefore not applicable to pregnant women.
Health care law changes
The Affordable Care Act, which amended provisions of the Fair Labor Standards Act, might also have implications for pregnancy bias claims.
The act requires that employers with at least 50 employees give break time and private space other than a bathroom to nursing mothers who want to express breast milk.
A federal judge recently dismissed a lawsuit brought by a Texas mother who was fired after she asked her employer to allow her to pump breast milk.
The events in that case occurred before the new breast-milk provision went into effect, said Carrie B. Hoffman, a partner at Gardere in Dallas, who represents employers.
But the case exposed a potential gap between the new FLSA amendments and the Pregnancy Discrimination Act, because even though the health care law imposes a duty on employers, there is no enforcement mechanism or anti-retaliation provision, according to Hoffman.
“All it does is amend FLSA. In theory there is a violation, but I’m not sure what the penalty is,” said Hoffman, who also noted that FLSA applies to hourly workers only.
But Williams said that interpreting the new law to require employers to give a nursing mother conditions for breast-feeding but then saying she can be fired for taking advantage of the opportunity would “be completely counterintuitive.”
Even though there is no specific anti-retaliation provision under the Affordable Care Act, that interpretation “would make nonsense of the law,” she said.
Some attorneys hope the EEOC issues clear guidance to help employers and employment law attorneys navigate this area.
In her testimony, Williams urged the agency to clarify the intersection between the Pregnancy Discrimination Act and the ADAAA, such as a rule that if a woman’s doctor has done a full assessment and recommends work restrictions, her condition qualifies as an impairment.
“We don’t second guess doctors’ notes in any context besides pregnancy, so we shouldn’t second guess doctors’ notes for pregnant women,” she argued.
Martin hopes the agency will draw an even brighter line.
“I would be looking for the EEOC to say [to employers to] treat pregnancy as you would treat other temporary disabilities, and that extends to the duty to accommodate,” Martin said.