Similar in Their Ability or Inability to Work

The Department of Labor's most recent data shows 59 percent of women of working age are in the workplace, comprising 47 percent of the workforce. The National Partnership for Women & Families found complaints of pregnancy discrimination have risen at a faster rate than that of women in the workforce.

The most common charges are allegations of discharge based on pregnancy and disparate terms and conditions of employment based on pregnancy. These include suspensions pending receipt of medical releases, medical examinations that are not job-related or consistent with business necessity, and forced leave.

A three-year study of Attitudes About Pregnant Employees shows attitudes remained the same over a twenty-year period between 1989 and 2009. Some of these stereotypes include pregnant women having mixed priorities; women needing to choose between family and career, and women being overly emotional and having physical limitations.

The Pregnancy Discrimination Act (PDA) reinforces gender discrimination under Title VII of the Civil Rights Act of 1964 including discrimination based on pregnancy, childbirth and related medical conditions. One clause in the PDA requires employers to treat pregnant women the same as other persons not so affected but similar in their ability or inability to work for all employment-related purposes.

Last year, the Equal Employment Opportunity Commission (EEOC) issued guidance broadening the definition of pregnancy and provided light duty assignments to pregnant workers, if light duty was available for any other conditions. EEO Commissioner Constance S. Barker's arguments included the super status of pregnant workers created in this guidance. The guidance was issued prior to the Supreme Court decision of Young v. United Parcel Service, Inc.

Peggy Young had a weight restriction during her pregnancy and was not provided light duty. She was placed on an unpaid leave.

The Supreme Court rejected EEOC's Pregnancy Accommodation Guidance and created a three-step process to make sure pregnancy does not have super status above all other individuals. The first step, the employee can establish pregnancy discrimination by demonstrating that she belongs to a protected class, she sought an accommodation, the employer did not accommodate her and the employer has accommodated other employees who were similar in their ability or inability to work.

If the first step is accomplished, the burden shifts to the employer to state a legitimate, non-discriminatory reason for its treatment of the employee. The third step offers the employee an opportunity to demonstrate the employer's policy indicates intentional discrimination if it imposes a significant burden on pregnant workers and its legitimate reasons are not sufficiently strong enough to justify the burden.

The EEOC issued new guidance this year in response to the Supreme Court's decision.

If attitudes lead to beliefs (stereotypes), and stereotypes lead to action; employers should pay close attention to the rights of their workforce to assure no action is discriminatory.