Firing a pregnant employee simply for being pregnant isn't just discriminatory (and illegal), it is arguably also short-sighted according to research from University of Massachusetts, Amherst researchers Donald Tomaskovic-Devey and Carly McCann. In their 2021 workplace pregnancy discrimination report, the researchers note that solid policies against pregnancy discrimination can be beneficial for both employers and employees.
Through the UMass' Center for Employment Equity, the team conducted a study using data from the Equal Employment Opportunity Commission. Supplemented with reporting from local or state-led Fair Employment Practices Agencies, which are EEOC partners, the researchers looked for patterns in reported pregnancy labor law violations.
Key HR takeaways from the findings include that pregnancy discrimination appears to be higher in male-dominated industries. Likewise, the presence of more female managers appears to reduce the likelihood of pregnancy discrimination in a workplace; establishments charged with pregnancy discrimination tend to have more male managers. (A note: Research in this field is often heteronormative and sticks to a gender binary.)
McCann says pregnancy discrimination occurs when "an employer treats a worker unfavorably" due to their pregnancy status. "That unfavorable treatment could take many forms. Most often it results in the worker losing their job," McCann told HR Dive. The most common issue listed in pregnancy discrimination charges was a firing: 68% of claims involved a discharge, 28% involved terms and conditions, 17% involved harassment and 12% involved accommodation.
"One thing that really sticks out from our report is pregnancy discrimination, it seems to be a unique form of sex discrimination that happens very quickly. When we think of other forms [like race discrimination], they tend to happen for a longer period of time," McCann said. "This may be a reflection of contemporary workplace discrimination — that is less overt but more insidious, and kind of built into structures and policies. This also may be a reflection of laws that sometimes require [the claimant] to show a hostile work environment, which may mean having to show repeated incidences over time."
Pregnancy-related misconduct is often more acute. "It tends to be very short and a targeted response to an employee disclosing their pregnancy status to their employer," said McCann. Sometimes, there are co-occurring issues in the claim, like racial discrimination or sex discrimination. McCann's study also revealed which industries were prone to pregnancy-related claims: Healthcare and social assistance, retail trade, accommodation and food services were the top three fields.
HR managers in the U.S. are likely familiar with the Pregnancy Discrimination Act. A quick refresher: The law, passed in 1978, amended Title VII of the Civil Rights Act of 1964. Pregnancy became a protected category, right along with race, sex and religion. Discrimination based on pregnancy and pregnancy-related conditions, such as gestational diabetes or preeclampsia, is prohibited for businesses with 15 or more employees.
Currently, the EEOC's best practice for employers is to treat pregnant employees the same as they would "temporarily disabled employees." For example, if an employee would be granted time off for a physical therapy appointment, they should also be granted time off for a post-natal OBGYN check-in, too. Light duty, alternative assignments, disability leave, or FMLA leave are other examples of equitable accommodations.
Not only does the law fail to eliminate what scholars call "the motherhood penalty." That is to say, the PDA doesn't fully protect an expecting parent against their employer's biased perceptions of their work performance. But it also lacks clarity, said McCann.
"Existing federal law only requires employers to provide accommodation if it's also providing accommodations to workers who are ‘similar in their ability or inability to work.' That kind of comparative problem creates a lot of confusion over and uncertainty regarding pregnant workers rights to accommodation," she said.
A note: 47 states, plus Washington D.C., have their own anti-pregnancy discrimination laws. Twenty-nine states have pregnant worker fairness acts, which "require employers to make reasonable accommodations for pregnant employees so that they can stay healthy while working." There's an employer-specific upside to this.
"The stronger laws that are getting passed in other states are really beneficial, because it provides very clear standards for both employers and employees regarding what employers must do to accommodate pregnant workers in the workplace," McCann said. Likewise, she's encouraged by the Pregnant Workers Fairness Act, which the House passed in May 2021. "The proposed Pregnant Workers Fairness Act essentially adopts the Americans with Disabilities Act, and just outright requires employers to provide accommodations," she said, adding that the main benefit is clarity.
Regardless of whether this bill is passed, McCann said employers have plenty of worthwhile incentives to accommodate expecting workers. Retention is higher, turnover is reduced, and employers won't have to incur the additional cost of recruitment. "And particularly in the case of pregnancy accommodations, they are by nature, temporary. They tend to be relatively minor, and often case, there's no direct cost to the type of accommodations that pregnant workers need in the workplace," she said.
"The accommodations that [expecting parents] typically asked for are pretty simple. They can include things like just being permitted to take more frequent bathroom breaks or being assigned to light duty. Those types of things don't have a direct cost," McCann said. "So I think it makes sense for employers to try to work with employees to accommodate their needs, rather than just dismissing them in hiring new workers."
