Most Americans, if they’ve thought about it at all, probably assume that in this day and age, women losing their jobs because they get pregnant is something that went out with martinis and cigars at the office. After all, both federal and state laws ban discrimination against pregnant women in the workplace, and the Americans With Disabilities Act (ADA) requires employees to accommodate workers, so how could there be any questions?
The problem is in a gap between what is considered discrimination due to pregnancy and what is considered a disability, which includes medical complications arising from pregnancy. Since the state of being pregnant is not itself considered a disability under the law, employers don’t have to provide any accommodations for pregnant workers.
No Lifting? No Job
The New York Times reported on a pregnant employee fired from her retail job because her doctor told her not to do any heavy lifting or climb ladders during the last six weeks of her pregnancy. When she informed her boss, she was fired; in 2008 a federal judge in Brooklyn ruled the firing was fair, because her employers were not obliged under the law to accommodate pregnancy-related restrictions.
This loophole in the law particularly hurts women in lower-income jobs and male-dominated professions, who are more likely to be in jobs that require standing for long periods of time, allow limited break times, or include heavy lifting. Anyone who has been pregnant, or been around a pregnant woman for any length of time, knows that pregnancy means more time spent in the bathroom for a variety of reasons. If you’re in a job that doesn’t allow for you to head down the hall whenever you want, this could be a major problem.
Disabled or Not Disabled? That Is the Question
Two New York congresswomen have introduced state legislation, currently in committee, to cover this discrimination gap. Their bills, if passed, would require employers to provide reasonable accommodations for pregnant women as requested by their doctors–things like more restroom breaks, limits on heavy lifting, a chair provided for someone who otherwise stands for long periods.
Seven states do have laws requiring private employers to provide at least some accommodations, and there is a recent push in some circles to cover pregnancy itself–not just its medical complications–under the ADA as a temporary disability. In a paper presented to the American Association of Law Schools, a researcher from the University of Dayton cited surprising examples, such as a retail worker losing her job because store policy didn’t allow her to drink water while at her station, or a pregnant police officer fired for not meeting physical requirements, even though temporarily disabled or injured officers were assigned short-term light duty.
Laid Off and Pregnant
It is illegal to refuse to hire someone or to fire them simply because she is pregnant. However, another concern, particularly in this precarious economy, is that employers might use the economy and lack of specific protections under the ADA to lay off pregnant women more often than other workers. It would be difficult to prove discrimination since no employer is going to admit that pregnancy motivated the decision in any way–even in some cases where the first or only people laid off were pregnant or new mothers.
This concern seems borne out by the numbers: pregnancy-related discrimination claims reported to the U.S. Equal Employment Opportunity Commission (EEOC) rose 65 percent between 1992 and 2007. More than half of all pregnancy discrimination complaints, according to the EEOC, involve unfair firings or layoffs.
Is pregnancy one more choice that women should have to defend, even into the 21st century? From these statistics, we may need more protection to ensure that pregnant women can at least follow instructions recommended by their doctors to ensure their own and their child’s health, without worrying about losing their job because of it.
