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By: Kirstin Kennedy, Staff Writer
When presidential hopeful Senator Elizabeth Warren recently suggested that she was terminated from her position as a school teacher in the early 1970s as a result of her pregnancy, women flocked to social media to share similar stories of pregnancy discrimination.[1] Many echoed precisely the story that had been told on the campaign trial: essentially, Sen. Warren alleged that she was offered a teaching job, but after she revealed that she was pregnant, the job was given to someone else.[2] Some commentators called into question the validity of her story, while others shrugged the assertion off as an antiquated issue evolved out of our modern American jurisprudence.[3]
While federal law now prohibits against pregnancy discrimination, the details of such protection are complex.
Initially, Title VII of the Civil Rights Act of 1964, which protects against employment discrimination on the basis of race, color, national origin, religion, and sex, failed to address pregnancy.[4] In 1978, more than a decade after the enactment of the Civil Rights Act, an amendment was ratified to Title VII which officially recognized pregnancy as a basis which is legally protected from employment discrimination.[5] This amendment is known as the Pregnancy Discrimination Act and encompasses “pregnancy, childbirth, and related medical conditions.”[6] Further, under Title VII, pregnant woman are legally protected from both “harassment and retaliation” that occurs in the workplace related to pregnancy.[7] As a result of the Pregnancy Discrimination Act, pregnant women who believe they were wrongfully terminated, harassed, or discriminated against by their employer as a result of their pregnancy have the ability to file suit.
Discrimination, harassment, and retaliation by an employer may come in many forms. The Pregnancy Discrimination Act creates several actionable protections related to employment, including failure to hire or refusal to promote an applicant or employee based on her pregnancy, altering the terms of her employment, including compensation, or demoting a woman as a result of her pregnancy or potential to become pregnant.[8] Additionally, employees are protected from constructive discharge created as a result of their pregnancy, meaning that employers cannot provide such an inadequate and unsafe work environment that an employee is effectively forced to quit.[9] The Act also prohibits employers from stating a preference in advertising open positions which express a bias against pregnant women.[10]
Despite the enactment of the Pregnancy Discrimination Act, wrongful termination, harassment, and discrimination on the basis of pregnancy still occurs today. According to the Equal Employment Opportunity Commission (EEOC), 3,174 claims of pregnancy discrimination were made to the agency in 2017.[11] While the number of pregnancy discrimination claims was significant, the number pales in comparison to the claims made regarding race and sex discrimination.[12] Notably, the Pregnancy Discrimination Act only applies to companies with 15 or more employees, leaving those employed by small companies or organizations to find, or attempt to find, recourse under state laws.[13] In Pennsylvania, pregnancy is protected similarly to discrimination which occurs on the basis of sex. The Pennsylvania Human Relations Act states that employment protections “shall be applied to disability due to pregnancy or childbirth on the same terms and conditions as they are applied to other temporary disabilities.”[14]
Moving forward, it is possible that this issue of pregnancy discrimination in the workplace will continue to impact Sen. Warren’s presidential campaign. Her efforts to insert this issue into the sphere of public discourse has served to show that pregnancy discrimination persists in the American workplace. While Sen. Warren has not proposed support for any sort of expansion of the Pregnancy Discrimination Act, it seems that, as more and more women become front-runners in presidential campaigns, issue related to sex and pregnancy discrimination will continue to be a topic of discussion.
[1] https://www.washingtonpost.com/business/2019/10/09/conservatives-claim-elizabeth-warren-lied-about-pregnancy-firing-women-reality-checked-them-social-media/
[2] Id.
[3] https://www.vox.com/policy-and-politics/2019/10/8/20904777/elizabeth-warren-pregnancy-discrimination-washington-free-beacon
[4] Pregnancy Discrimination, Practical Law Practice Note 5-581-0605
[5] Id.
[6] Id.
[7] Id.
[8] Id.
[9] Id.
[10] Id.
[11] Id.
[12] Id.
[13] Id.
[14] 16 PA Code § 41.103
