How Workplaces Can Combat Pregnancy Discrimination

As a mother of a young child today, I know much has changed for mothers in the workforce since my mother and her mother had children. But there’s one thread that ties our narratives together – a subject that’s too often fleeting in the broader discussion of working moms: the discrimination women experience during pregnancy, and after they return to work.

Every year, thousands of women file charges against employers for acts of pregnancy discrimination. In fact, charges of pregnancy discrimination filed with the U.S. Equal Employment Opportunity Commission (EEOC) actually increased by 71 percent between 1992 and 2011.

What does pregnancy discrimination look like, exactly? It occurs when an employer treats a job applicant or an employee unfavorably due to her pregnancy, childbirth, or a related medical condition. It could involve refusing to hire or promote a qualified individual because she is pregnant, firing a woman because she missed a few days of work to give birth, or forcing a pregnant employee to take unpaid leave. Sure, this behavior hurts pregnant women and their families, but it also hurts employers: In addition to breaking the law, these companies may be failing to retain some of their most highly qualified employees – losing out on their skills and productivity.

The bottom line is that women comprise a significant proportion of the nation’s talent pool, and when their contributions are constrained by patronizing and outmoded notions of what motherhood should look like (even well-intentioned ones), our workforce, our economy and our families suffer. At present, women serve as the sole or primary breadwinners in 40 percent of American households. In other words, women’s sustained participation in the labor force is critical to the economic security and stability of millions of individual families.

And yet, here we are in 2015, and some employers still view child-bearing and employment as mutually exclusive activities. Just last year, the EEOC announced a $30,000 settlement to a pregnancy discrimination lawsuit a woman brought against her former employer, Triple T Foods in Arkansas, which fired her the day she announced she was pregnant. This is only one example of the $3.5 million the EEOC recouped in damages for victims of pregnancy discrimination between 2011 and 2014.

We have a long way to go. But we’ve made progress in some ways. For example, just a generation ago, many women left the workplace when they became visibly pregnant. In the 1960s, almost half of women who worked during their first pregnancy left the workforce by the time they were about 6 months pregnant. Today, only about 12 percent do.

And we’re certainly better off than we were. In 1908, the U.S. Supreme Court, in Muller v. Oregon, upheld a state statute restricting the number of hours per day a female employee could work and thereby set a precedent for paternalistic laws intended to “protect” women from the hazards and indignities of the workplace. While the Court acknowledged that the statute treated workers differently on the basis of sex, it also found that that a woman’s “physical structure” and “maternal functions” justified such unequal treatment.

Although the precedent established in Muller had unraveled by the late twentieth century and its discriminatory assumptions are no longer formally codified in law, they still permeate the cultural expectations surrounding women—especially pregnant women—in the workplace. These expectations can affect women even before they enter the workplace. Pregnant women face discrimination at job interviews and face much greater discrimination than other workers with short-term disabilities who may need minimal accommodations. For example, in a survey funded by the W.K Kellogg Foundation, 69 percent of respondents who reported being denied a pregnancy-related accommodation felt that their employers had honored similar requests from coworkers with other limitations or disabilities.

Knowing that this culture exists can and often does discourage women from requesting accommodations from or disclosing her pregnancy to her supervisor. In the same survey, more than half of respondents reported needing scheduling accommodations for prenatal visits and the like, but more than a quarter reported failing to request such an accommodation. That’s a shame, because the truth is that employers should be able to accommodate these requests with minimal expense and inconvenience.

How do we ensure that women who work during pregnancy are treated equitably, and begin to break down this discriminatory culture? That requires a combination of more progressive employer policies coupled with a set of robust legal and regulatory protections. At the federal level, women are protected by laws like Title VII of the Civil Rights Act, the Pregnancy Discrimination Act (PDA), the Americans with Disabilities Act (ADA), and the Family and Medical Leave Act (FMLA), but there is more we can do.

In June, at the White House Summit on Working Families, President Obama called for federal legislation that supports pregnant workers. Some states like Delaware and Illinois have taken the lead and passed their own versions of the proposed federal Pregnant Workers Fairness Act.

The EEOC has stepped up, too, releasing new enforcement guidance last year to clarify the applications of the PDA and the ADA, as they apply to pregnant workers. This guidance “requires that employers treat women affected by pregnancy or related medical conditions the same way they treat non-pregnant applicants or employees who are similar in their ability or inability to work.” This means that employers have to make reasonable accommodations for pregnant workers if they also make such accommodations for other employees who have a temporary disability. The EEOC’s notice also includes women who undergo fertility treatments, are nursing mothers, or are discriminated against based on stereotypes and assumptions about motherhood.

Outside of government, workplaces across the nation are already teeming with examples of managers and employees alike who are dismantling outdated assumptions about the needs and abilities of pregnant workers, as well as the responsibilities of the employers who hire them. Combining statutory and regulatory protections with voluntary actions by employers can amplify this groundswell of progress. From the classroom to the board room to the factory floor, we see daily evidence of the powerful alignment of workplace policy, statutory protections and individual determination in ensuring that women can, in fact, do and be just about anything.

Building a workplace culture that aligns with the demographic realities of today’s labor force allows employers not only to stay on the right side of the law, but, as a growing body of evidence suggests, shows that employers can still do well with their bottom line by treating all of their workers fairly. After all, support for pregnant workers doesn’t simply benefit this generation of workers; it’s an investment in generations to come.

Latifa Lyles is the Director of the Women’s Bureau at the Department of Labor. This piece was originally published in New America’s digital magazine, The Weekly Wonk. Sign up to get it delivered to your inbox each Thursday here, and follow @New America on Twitter.