Cloaking: Public Policy and Pregnancy

• Published date: 01 September 2016
• DOI: http://doi.org/10.1111/ablj.12082
• Date: 01 September 2016
• Author: Julie Manning Magid

Cloaking: Public Policy and

Pregnancy

Julie Manning Magid*

INTRODUCTION

Long before J.K. Rowling wrote about an invisibility cloak that allowed

Harry Potter and his friends to disguise their presence and move freely

without detection,

1

cloaks, both literally and figuratively, were associated

with hiding and disguise.

2

Pregnancy is often enshrouded as well, not

only by women who want time before announcing publicly that they are

expecting a child,

3

but also in the course of public policy discussion and

resulting legislative or regulatory enactments.

In the United States, public policy decisions concerning employment

tend to avoid the important issue of pregnancy in the workplace, and

*Associate Professor of Business Law, Kelley School of Business, Indiana University. Thank

you to Charlotte S. Alexander, Catharyn A. Baird, Terry Morehead Dworkin, Leora

Eisenstadt, Stephanie Greene, Stacey A. Hickox, Virginia Maurer, Jamie Darin Prenkert,

Alex Reed, and Cindy Schipani—the participants in the Title VII: Fifty Years Later Collo-

quium, Ross School of Business, University of Michigan—for helpful comments.

1

J.K. ROWLING,HARRY POTTER AND THE SORCERER’SSTONE 201 (1997) (“He pulled the cloak

over his head and his reflection vanished completely.”).

2

Cloak,WEBSTER’SNEW WORLD COLLEGE DICTIONARY 271 (4th ed. 2007) (“Something that

covers or conceals—‘a cloak of secrecy.’”).

3

See, e.g., Alissa Quart, Why Women Hide Their Pregnancies,N.Y.TIMES (Oct. 7, 2012), http://

www.nytimes.com/2012/10/07/opinion/sunday/why-women-hide-their-pregnancies.html?_r=0;

see also Press Release, EEOC, EEOC Sues Annapolis Internal Medicine for Pregnancy Dis-

crimination and Retaliation (Sept. 30, 2013), www.eeoc.gov/eeoc/newsroom/release/9-30-

13e.cfm. The EEOC matter involved an employee who was reprimanded and received coun-

seled warnings that she “had to be honest about her condition [with her employer].” Id.In

noting that an employer cannot legally make employment decisions based on pregnancy, the

EEOC Philadelphia District Director asserted, “It is not somehow ‘dishonest’ if a woman

does not reveal her pregnancy during a job interview.” Id.

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C2016 The Author

American Business Law Journal V

C2016 Academy of Legal Studies in Business

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American Business Law Journal

Volume 53, Issue 3, 439–485, Fall 2016

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this avoidance has disproportionately negative implications for

women. “Cloaking,” as I use it here, refers to the various ways the

United States legislates issues related to women in the workplace with-

out directly discussing the uniqueness of pregnancy and its impact on

employment and the wage gap. In particular, the policy discussions

do not address transparently that the modern workforce requires job

changes for economic advancement,

4

and current policies focusing on

accommodation and family leave fail to protect job changes during

childbearing years.

5

Labor-market demands and economic self-sufficiency for women

require policy makers in the United States to cast off the cloak that cam-

ouflages pregnancy as a subset of other policy concerns—gender,

6

dis-

ability,

7

family

8

—and fully embrace pregnancy as a crucial issue in

developing economic policy. The Equal Employment Opportunity Com-

mission (EEOC) receives thousands of complaints of pregnancy discrimi-

nation each year; these numbers peaked in 2008 but remain steadily

higher than in the previous decade.

9

In an effort to add transparency

to the issue, the EEOC conducted a public meeting in preparation for

issuing new guidance to clarify further regulations related to pregnancy

4

Jessica Looze, The Effects of Children, Job Changes, and Employment Interruptions on Wom-

en’s Wages4 (Feb. 2015) (unpublished Ph.D. dissertation, University of Massachusetts Amherst),

http://scholarworks.umass.edu/cgi/viewcontent.cgi?article=1303&context=dissertations_2 (“Lost

in these discussions is the fact that movement among employers is often beneficial to wage

growth.”).

5

See infra Part III.

6

See infra Part I.B.1.

7

See infra Part I.B.2.

8

See infra Part I.B.3.

9

Pregnancy Discrimination Charges EEOC & FEPAs Combined: FY 1997–FY 2011, EEOC, http://

www.eeoc.gov/eeoc/statistics/enforcement/pregnancy.cfm (last visited Mar. 31, 2016); see also

Melanie Trottman, Agency Makes New Push to Help Pregnant Workers,W

ALL ST. J. (Feb. 16,

2012), http://www.wsj.com/articles/SB10001424052970204059804577225650072138944;

Fact Sheet on Recent EEOC Pregnancy-Discrimination Litigation, EEOC, http://www.eeoc.gov/

laws/guidance/pregnancy_fact_sheet_litigation.cfm (last visited Mar.31, 2016) (noting that in

2014 pregnancy related lawsuits were 18.4% of all Title VII related lawsuits filed by the

EEOC).

440 Vol. 53 / American Business Law Journal

and its economic impact.

10

At the public meeting, experts identified a

direct connection between pregnancy discrimination and economic self-

sufficiency for women and their families. As one expert noted, citing the

“motherhood wage penalty” of as much as five percent per child,

“[m]otherhood constitutes a significant risk factor for poverty.”

11

Research defining the wage gap between men and women now recog-

nizes that parental status has much more to do with wage disparity than

gender alone.

12

Moreover, the gender pay gap related to parenthood is

increasing at the same time the gap related to gender alone is decreas-

ing.

13

The motherhood wage penalty exists even while research controls

for qualifications, experience, work hours, and jobs.

14

Although women

now comprise forty-seven percent of the U.S. workforce, and a woman

is the primary or coprimary wage earner in nearly two-thirds of Ameri-

can families, income equality has not followed workforce participation.

15

Currently receiving little attention in policy and legal literature, atten-

tion should focus on the major factor in determining the ability for

women to provide for their family, achieve economic success, and

address long-term workforce labor requirements: pregnancy.

Although Title VII of the Civil Rights Act of 1964 (Title VII)

16

is land-

mark legislation, it evolved out of a historical context of conflict between

10

Press Release, EEOC, Unlawful Discrimination Based on Pregnancy and Caregiving

Responsibilities Widespread Problem, Panelists Tell EEOC (Feb. 15, 2012), http://www.

eeoc.gov/eeoc/newsroom/release/2-15-12.cfm.

11

Id. (quoting Stephen Bernard, Professor, Ind. Univ., Video Testimony at EEOC Public

Meeting, stating also that “the gender gap in wages may be primarily a motherhood gap”).

12

MICHELLE J. BUDIG,THIRD WAY,THE FATHERHOOD BONUS &THE MOTHERHOOD PENALTY:

PARENTHOOD AND THE GENDER GAP IN PAY 7 (2014), http://s3.amazonaws.com/content.thirdway.

org/publishing/attachments/files/000/000/198/NEXT_-_Fatherhood_Motherhood.pdf?1412698808.

Figure 2 demonstrates that women’s wages are closest to men if they are never married and

furthest from men if they are a married parent. Id. at 6 fig.2.

13

Id.at8.

14

Id. at 19–20.

15

Press Release, EEOC, supra note 10 (referencing Bureau of Labor Statistics data); see also

Mitra Toossi, A Century of Change: The U.S. Labor Force, 1950–2050,M

ONTHLY LAB.REV.,

May 2002, at 15, http://www.bls.gov/opub/mlr/2002/05/art2full.pdf.

16

Pub. L. No. 88-352, 78 Stat. 241 (1964) (codified as amended at 42 U.S.C. §§ 2000e—

2000e-17 (2012)).

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