A Marked Increase in Pregnancy Discrimination Claims and Other Key Developments Illustrate the Continuing Struggle of Pregnant Workers - Including Pregnant Attorneys:
Part Two in a Two-Part Series of Columns

This series considers the continuing struggle to ensure that pregnant women and mothers are fully integrated into the American workplace. A dramatic rise in pregnancy discrimination complaints and a recent study demonstrating the adverse effects of motherhood on the productivity of women lawyers together provide the occasion to revisit the state of the laws protecting pregnant women. Pregnancy is the first potential conflict between motherhood and work, one that sets the stage for a career-long struggle by mothers to succeed, despite shouldering the lion's share of the burden of childbirth and, typically, of childrearing.

Part One of this series considered the historical development of pregnancy discrimination law. As Part One explained, the development of the law in this area revolved around an early constitutional loss, and a statutory victory: In Geduldig v. Aiello, the Supreme Court ruled that pregnancy discrimination does not warrant heightened scrutiny under Equal Protection analysis. However, shortly thereafter, Congress enacted a broad-ranging ban on pregnancy discrimination - the Pregnancy Discrimination Act (PDA).

In two separate clauses, the PDA respectively bans discrimination on the basis of pregnancy, and requires that pregnant workers be treated the same as other temporarily disabled employees. This column will consider the ways in which these two guarantees have served the interests of pregnant workers, yet still fallen short of delivering true equality.

The Supreme Court and the PDA Have Recognized a Right Against Adverse Treatment and Stereotyping

Ironically, the same year that the Supreme Court shut the door on equality-based pregnancy claims in Geduldig, 1974, the Court also found that some protection against pregnancy discrimination exists in the Constitution, based in the due process clause. In Cleveland Board of Education v. LaFleur, the Court invalidated policies from several school districts that had forced pregnant teachers to leave work early in their pregnancies (regardless of whether or not they were able to work), and had permitted them to return only three months after childbirth.

What troubled the Court in LaFleur (and a related case decided the following year) was the often-inaccurate assumption that all pregnant women suffered similarly in their inability to work during certain phases of pregnancy, and during recovery from childbirth. The Court invoked the Due Process Clause, with its long-established protection for rights related to reproduction - for instance, related to contraception, abortion, and childrearing --to conclude that policies like these were sufficiently arbitrary to fail constitutional scrutiny.

When Congress enacted the PDA in 1978, it picked up on this constitutional concern about inaccurate classification - or stereotyping - and extended it to private employers. Importantly, the first clause of the PDA (which was embodied as well in a subsequently adopted federal regulation) took aim at traditional policies and practices that had explicitly or implicitly barred women from working through pregnancy.

Together, LaFleur and the first clause of the PDA put an end to most formal policies regarding pregnant workers, for both public and private employers. Employers could no longer openly refuse to hire pregnant women, force them to take leave at a particular point during pregnancy, or require them to stay away for a period of time after childbirth - policies that were once commonplace. After the enactment of the PDA, and following LaFleur, employers had to junk these policies, or else risk running afoul of federal law.

Moreover, and importantly, the PDA went further than the Supreme Court had under LaFleur - for it created an equality-based right against being treated adversely because of pregnancy. Pregnant women, the PDA established, have the right to be individually assessed, rather than judged by stereotype.

For example, an employer cannot refuse to hire a pregnant employee based on the assumption that she would insist on time off after childbirth, or would fail to return to work following a maternity leave. But that is not all: Under the PDA, pregnant women also cannot be singled out for adverse treatment, as compared with the treatment that is, or would, received by a temporarily-disabled male employee. For instance, a pregnant woman who actually would insist on time off after childbirth cannot be fired for that insistence, unless the employer would also fire a man with a comparable disability who insisted on a period away from work to recuperate.

The Limits of the PDA, As Applied in Practice

The equality right the PDA establishes is theoretically quite broad, but, practically, more limited. Courts have struggled, for example, to figure out when a particular employment decision was because of pregnancy, rather than simply a decision that affected an employee who happened to be pregnant.

Consider the Seventh Circuit's ruling in Troupe v. May Department Stores. There, a pregnant sales clerk was fired just one day before she was scheduled to take maternity leave, after a series of warnings about excessive tardiness. Was she fired because she was often late to work, or as punishment for being pregnant and planning a maternity leave? The court ruled that she had failed to prove that the employer made the decision because of her pregnancy, as opposed to because of her frequent lateness.

Troupe illustrates some of the limits of the PDA. First, even if a pregnant woman performs up to the employer's standard, she still bears the burden of proving that any adverse decision was made because of her pregnancy. And this can prove difficult. In a typical (non-pregnancy) employment discrimination case, the plaintiff may be able to find a counterpart of a different race or gender who performed similarly, yet was treated differently. Yet the likelihood that a plaintiff will find the "hypothetical Mr. Troupe" suggested by the Seventh Circuit - a man who was not fired for being chronically late due to a medical condition for which he will soon commence an extended leave - is low. So is the chance that the employee with happen to find direct evidence of the employer's animosity towards pregnant workers.

Second, to the extent that the plaintiff's pregnancy actually made her unable to perform up to the employer's standards, the PDA provides no absolute protection against adverse action. If morning sickness in fact made her late, then the employer could legally have fired her for tardiness (even though it was tardiness caused by pregnancy), as long as there is no reason to believe it would have treated a comparably tardy male employee differently.

As this example illustrates, then, the PDA does not require employers to accommodate the actual needs of pregnancy. For instance, an employer who requires employees to lift heavy things can legally force pregnant employees whose doctors forbid such lifting to go on unpaid leave, or even fire them for that temporary incapacity. As I discussed in a previous column, many courts have upheld employer policies restricting the availability of light-duty assignments to employees injured on the job - and thus denying such positions to pregnant women with a temporary need for light duty.

These policies are theoretically subject to challenge under a disparate impact theory (that is, a theory based on evidence showing that while the policies do not openly target pregnant women, they disproportionately affect them). However, disparate impact cases are notoriously hard to win because there is rarely enough data to carry the statistical burden courts impose.

Without data to sustain a disparate impact challenge, pregnant women denied light duty under such a policy can only successfully challenge the policy if they can show it was adopted in order to disadvantage them (rather than adopted in spite of the disadvantage to them).

Female law enforcement officers in Suffolk County, New York won just such a case two years ago. As I described in a prior column, evidence that the light-duty policy was ignored when non-eligible men made requests, but strictly enforced when pregnant women did, was no doubt important to the jury's finding in favor of the plaintiffs. But in many cases, light-duty policies do not arise from a discriminatory motive (or, at least, not one that can be proven). And the simple failure of an employer to take into account the range of its workers' needs is not actionable.

The bottom line, then, is that the substantive guarantee of the PDA's first clause is crucial - without it, pregnant women would be living in the dark ages once again - but it is also insufficient to bring about true equality. It protects pregnant women against the harm of inaccurate classification - that is, it protects them from being assumed disabled when they are actually able, or stereotyped as weak and needy when in fact they are indistinguishable from men. Yet it does little to protect pregnant women during periods of actual disability.

The Right of Comparable Leave and Benefits

The second clause of the PDA makes a separate guarantee - the promise that pregnant women are entitled to the same treatment as other temporarily-disabled employees. The meaning of this clause was hotly debated with respect to the Supreme Court case California Federal Savings v. Guerra - and the case divided the feminist community, which split over the litigation strategy to be employed.

One coalition among feminists argued for an "equal treatment" interpretation of the second clause, which would limit pregnant women to the same rights as other temporarily-disabled workers - no more, no less. Another coalition argued for a "special treatment" approach, which would permit employers to treat pregnant women better than other temporarily-disabled workers.

The Supreme Court adopted the latter approach, ruling that the PDA formed a "floor, but not a ceiling" on employers' treatment of pregnancy and childbirth. In practice, Guerra means that employers can choose to provide no benefits or leave for disability at all without violating the PDA, but if they do provide benefits or leave, they cannot exempt pregnant women. Guerra also means that employers are permitted to provide benefits only for disability related to pregnancy, excluding disabilities attributable to all other causes.

The "floor" provided by the second clause is a significant one. Many employers provide benefits for temporarily-disabled employees - leave, insurance, and so on. Under the PDA, pregnant employees are guaranteed access to the same benefits. The only limit is that benefits for pregnant women must be drawn to cover the actual period of physical disability - six-to-eight weeks for normal childbirth, for example. The PDA's floor is laudable, for access to disability benefits can be extremely important during pregnancy. Moreover, such benefits may make it possible for many women to continue work through pregnancy and to resume work after childbirth.

The "not a ceiling" aspect of the PDA has also been important for pregnant women. The recent decision of several large law firms to increase their standard maternity leave to 18 weeks reflects the employer's power to go further than the law requires, by providing special accommodations for pregnancy, regardless of the benefits the employer may provide for other temporarily-disabled employees.

However, as with the right guaranteed by the first clause of the PDA, this right is necessary to open doors, but insufficient to facilitate full integration of pregnant women into the workplace. For example, an employer can refuse to provide any leave for temporary disability. In that situation, a pregnant woman who needs even minimal leave for childbirth and recovery could not invoke the law to demand it - and, indeed, could be fired for missing work.

(Granted, the Family and Medical Leave Act provides mandatory unpaid leave for employees of large employers, but many workers work for smaller employers or are themselves ineligible for leave. Also, most importantly, many workers cannot afford to take unpaid leave.)

Finally, even where an employer does provide some benefits for temporarily- disabled employees, they may or may not be sufficient to meet the needs of most pregnant women. That the PDA does not force employers to accommodate pregnancy is a major shortcoming - and one that ought to be addressed by Congress in an amendment.

The Current State of Pregnancy Discrimination Law: A Tremendous Improvement on the Past, but Still Far From Optimal

The challenges facing pregnant women at work are not nearly as bad as they used to be. Progress does not justify complacency, however. Many pregnant women continue to experience discrimination in the workplace, and those that pursue their claims in court often face insurmountable problems of proof or courts hostile to their claims. And, in many instances, the adverse treatment pregnant women experience is perfectly legal.

For these reasons, we need to rethink the structure of pregnancy discrimination law to better meet the needs of working women.