Pregnancy discrimination occurs when expectant women are fired, not hired, or otherwise discriminated against due to their pregnancy or intention to become pregnant. Common forms of pregnancy discrimination include not being hired due to visible pregnancy or likelihood of becoming pregnant, being fired after informing an employer of one’s pregnancy, being fired after maternity leave, and receiving a pay dock due to pregnancy.
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Employers discriminate on the grounds of pregnancy for a number of reasons:
In the United States, since 1978, employers are legally bound to provide the same insurance, leave pay, and additional support that would be bestowed upon any employee with medical leave or disability. This only applies to companies with 15 or more employees (including part-time and temporary workers).
With more than 70% of women with children in the work force, pregnancy discrimination is the fastest growing type of discrimination in the U.S., and in 2006 represented approximately 6.5% of all discrimination claims filed. The U.S. Equal Employment Opportunity Commission mediates claims between employees and employers. In 2006, the EEOC handled 4,901 claims with an eventual monetary pay-out by various organizations totaling $10.4 million.
In 1978, the U.S. Congress passed the Pregnancy Discrimination Act (P.L. 95-555), an amendment to the sex discrimination section of the Civil Rights Act of 1964. In 2002, California's Paid Family Leave (PFL) insurance program, also known as the Family Temporary Disability Insurance (FTDI) program, extended unemployment disability compensation to cover individuals who take time off work to bond with a new minor child. PFL covers employees who take time off to bond with their own child or their registered domestic partner's child, or a child placed for adoption or foster-care with them or their domestic partner.
The federal Pregnancy Discrimination Act, which modified Title VII, requires employers to treat pregnant women the same as all other employees. It also enables a woman to take 4 months of pregnancy leave, even if she is a new employee, and even if she does not work full time. Pregnancy leave is mandatory when a woman is “disabled” due to her pregnancy, a medical condition associated with her pregnancy, or to childbirth. A medical professional makes the determination of whether a woman is “disabled” such that she requires leave. An employer may not force you to take leave all at once. Moreover, before taking leave, an employer must permit you to take time off for pregnancy-related illnesses. [1]
The Pregnancy Discrimination Act of 1978 and Family and Medical Leave Act are rooted in several major court decisions leading up to them.
In the 1908 case Muller v. Oregon the Supreme Court upheld a decision limiting women to 10 hour workdays based on the idea that "performance of maternal functions" made women inherently incapable of the same work that men did. In the 1950s and 1960s laws in several states prohibited women from working and banned their hiring for some length of time before and after delivery. In 1971 Reed v. Reed became the first Supreme Court decision to invoke the Equal Protection Clause of the 14th Amendment to protect women from discrimination on the basis of sex.
Two major cases in the 70s appear to be directly responsible for the Pregnancy Discrimination Act. The first, Geduldig v. Aiello (1974), ruled that the exclusion of medical benefits for pregnant women in California by the California State Disability Insurance program was non-discriminatory.
“While it is true that only women can become pregnant…the [California State Disability Insurance] program divides potential recipients into two groups- pregnant women and nonpregnant persons. While the first group is exclusively female, the second group includes members of both sexes. The fiscal and actuarial benefits of the program thus accrue to members of both sexes.”
In 1976 General Electric v. Gilbert, 429 U.S. 125, set a similar precedent for private insurance through an employer. The uproar from these two decisions appears to have directly fueled the creation of the Pregnancy Discrimination Act by Congress.
In 2009 the Supreme Court again addressed Pregnancy discrimination with their ruling in AT&T Corp. v. Hulteen that held that maternity leave taken before the passage of the 1978 Pregnancy Discrimination Act cannot be considered in calculating employee pension benefits, therefore essentially implying that the Pregnancy Discrimination Act is not retroactive.
The European Union regards less favourable treatment on grounds of pregnancy as unlawful, and the same thing as discrimination on grounds of sex (contrasting to the American case of Geduldig v. Aileo and consistent with the American approach in the Pregnancy Discrimination Act of 1978).
The European Court of Justice decided in Dekker v Stichtig Vormingscentrum Voor Jone Volwassen (VJV-Centrum) Plus[2] that pregnancy discrimination was sex discrimination without any requirement for comparing this unfavourable treatment to a man. It reaffirmed this position in Webb v EMO Air Cargo (No 2)[3] where a woman had been dismissed because she had attempted to take pregnancy leave, but had not disclosed this to her employer when hired. As well as a dismissal, a failure to renew a fixed term contract may also be discrimination.[4] Furthermore, during any period of pregnancy or maternity leave there may be no detriment or dismissal in connection with a period of sickness.[5] A woman is also allowed to shorten her maternity leave and return to work when she becomes pregnant again to get the second period of pregnancy, even though she is not fully able to carry out all her normal job functions.[6]
It is also clear that women who are pregnant are protected at job interviews. In the Tele Danmark case[7] a woman has been held to be not at fault for not telling an employer she was pregnant while being interviewed for a job, despite knowing she was pregnant.
Canadian law puts a heavy fine on companies if they are found to have committed acts of pregnancy discrimination.
Mexico and Japan have laws to combat pregnancy discrimination.