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

Last week, the Wall Street Journal reported a surge in pregnancy discrimination complaints filed with the EEOC. Meanwhile, a recent article noted a trend among the nation's largest law firms of extending paid leave for new mother and fathers. And, finally, a pair of Canadian sociologists just published a study finding that the productivity of women lawyers drops dramatically after they have children.

These stories come from varied sources and address different issues, but they tell pieces of the same story: the story of the continuing struggle to ensure pregnant women and mothers are integrated fully into the American workplace. Respectively, they reflect the continued existence of discrimination against pregnant women; the genuine attempts by employers to accommodate the needs of pregnant and mothering workers; and, ultimately, how much work is left to be done before mothers are integrated fully into the workplace.

The treatment of pregnant workers in the workplace warrants attention. Women make up nearly half of the workforce today, and more than eighty percent of American women will become mothers. Today, more pregnant women work through their pregnancies and return to work following childbirth than ever before.

In this column, Part One of a two-part series, I'll consider the rise in pregnancy discrimination complaints and the origin of modern legal protections for pregnant workers. In Part Two, I will argue that the law provides important, minimal protections, but stops short of facilitating the full integration of women into the workplace.

Pregnancy Discrimination Complaints on the Rise

EEOC statistics show that pregnancy discrimination complaints have increased dramatically in a number of recent years, increased forty percent over the last decade and increased fourteen percent in just the last year. (Charge statistics are available at http://eeoc.gov/stats/pregnanc.html). Though the birth rate declined over the past decade, pregnancy discrimination charges were among the fastest-growing category of claims with the EEOC. These statistics are consistent with anecdotal reports from women about their experiences of being fired, demoted, or otherwise treated adversely because of pregnancy.

What do these statistics capture? As a threshold matter, we can be confident that EEOC charges represent only a tiny fraction of instances in which a worker actually experiences bias based on her pregnancy. Research firmly establishes that most workers who experience discrimination never take any formal action or seek redress of their injuries. (I have considered the problem of low reporting levels in the harassment context in a prior column).

But does the increase in complaints reflect a rise in the incidence of pregnancy discrimination, or simply greater awareness by employees of their legal rights? Probably both. A six-fold increase in monetary payouts related to EEOC charges -- from $5.6 million in 1997, to $30 million in 2007 -- suggests greater enforcement or a greater percentage of well-founded complaints. And the $30 million figure does not even include damages awarded in subsequent lawsuits.

At the same time, however, there is reason to think the rise in complaints also reflects greater awareness of rights against pregnancy discrimination. As the Wall Street Journal article reports, non-profit advocates for women have been receiving increasing numbers of calls for assistance with problems of pregnancy bias or discrimination. Among other things, however, these calls indicate workers' confusion about their legal rights. Some erroneously believe they have a right to paid childbirth leave. Others erroneously believe that no adverse employment action (such as firing, demotion, or a decrease in pay) can be taken against a pregnant woman. Others are not sure whether they are entitled to return to the identical position they previously occupied at work after an approved pregnancy or childbirth leave.

The Development of Pregnancy Discrimination Law

Prior to the passage of the Pregnancy Discrimination Act in 1976, it was common for employers to impede pregnant women's access to new or continued employment. The influx of women into the workforce in the 1960s and 1970s spurred the essentially modern conflict between pregnant women and employers. As a matter of both official policy and individual treatment, employers often refused to hire pregnant women, required pregnant employees to leave before a certain point in their pregnancies, and denied them insurance, disability coverage, and leave.

The partial or wholesale exclusion of pregnant women from the workforce eventually bore the imprimatur of law, as the Supreme Court ruled that neither the Equal Protection Clause nor Title VII (the main federal statute protecting workers against employment discrimination) prohibited discrimination on the basis of pregnancy, as opposed to discrimination on the basis of sex.

In Geduldig v. Aiello, the Supreme Court considered a challenge to California's disability insurance program for private employees, which required all employees to contribute one percent of their salaries to the program in exchange for coverage. The plan excluded temporary disabilities resulting from dipsomania, drug addiction, sexual psychopathy and normal pregnancy.

The plaintiffs in Geduldig challenged the exclusion of pregnancy-related disability by citing Reed v. Reed and Frontiero v. Richardson - two precedents that had established, for the first time, the right to heightened scrutiny under the Equal Protection Clause for sex-based classifications. These precedents did not apply, however, according to Justice Stewart's majority opinion, because the exclusion of pregnancy did not constitute a sex-based classification. As the Court explained, "There is no risk from which men are protected and women are not. Likewise, there is no risk from which women are protected and men are not. . . . The program divided potential recipients into two groups--pregnant women and nonpregnant persons."

This ruling, though analytically indefensible, effectively put an end to the claim that pregnancy discrimination is a form of unconstitutional sex inequality. Then, two years later, the Supreme Court applied this same reasoning to Title VII in General Electric Co. v. Gilbert, ruling that the statute's ban on sex discrimination did not encompass a ban on pregnancy discrimination.

Outrage over the ruling in Gilbert gave rise to the Campaign to End Discrimination Against Pregnant Workers, a coalition that first proposed, and ultimately secured, a new law banning pregnancy discrimination. The Pregnancy Discrimination Act (PDA) of 1978 heralded in a new era for pregnant workers: guaranteed access to the workplace.

More specifically, the PDA specifically overruled Gilbert's interpretation of Title VII by amending the statute to replace "because of sex" with "because of sex or pregnancy" throughout. The PDA contains two separate clauses, each guaranteeing a substantive right. The first is the right against being treated adversely because of pregnancy. The second is the separate right to be treated, when pregnant and unable to work, the same as other employees who are also unable to work due to temporary disability.

There is no question that the PDA opened doors to the workplace. To cite just one statistic, the percentage of pregnant women dropping out of the workforce plummeted after the PDA came into force - from over half, before 1978, to less than one third in 1995. In Part Two of this two-part series, I'll consider the specific ways in which pregnancy discrimination law has served the interests of pregnant workers, as well as the ways in which it has fallen short.