PREGNANCY DISCRIMINATION: PREGNANT WOMEN NEED MORE PROTECTION IN THE WORKPLACE.

• Author: Eaton, Brianna L.

1. INTRODUCTION

   In the wake of the "Me Too" and the "Times Up" movements, women are telling the world that enough is enough. (1) While these monumental movements have given women the strength and courage to speak out against injustice, there is still more to be done. (2) The Pregnancy Discrimination Act ("PDA") marked a significant shift in the right direction, but the issue of pregnancy discrimination still exists forty years after its passage. (3) While many employers have become more welcoming to pregnant women by providing generous parental leave policies, comfortable on-site rooms for breast feeding, and new programs aimed at retaining mothers, many employers--regardless of size or prestige--still discriminate against pregnant women. (4)

   In 2019, gender-based discrimination should be a thing of the past; unfortunately, that is not the case. In a recent article by The New York Times, several women gave testimonials regarding the discrimination they experienced from their employers because of their pregnancies. (5) In one testimonial, a pregnant woman who worked at Wal-Mart asked her supervisor if she could stop lifting heavy trays. (6) Her boss told her that being pregnant was not an excuse because "she had seen Demi Moore do a flip on TV when she was nearly full-term." (7) In another testimonial, a top saleswoman at a large pharmaceutical company was winning awards for her excellent performance until she was fired three weeks before giving birth. (8) In another, a senior employee at the financial giant Glencore was belittled on the trading floor. (9) After she returned from maternity leave, she was told to pump breast milk in a supply closet, which was filled with recycling bins. (10)

   The New York Times did extensive research into pregnancy discrimination by reviewing thousands of public records and court documents, and by interviewing numerous women. (11) The research showed a clear pattern: many companies still systematically discriminate against pregnant women. (12) Pregnant women are constantly passed over for promotions and raises, and many women are fired while they are pregnant. (13) Women who have physically demanding jobs--where they have to lift or move heavy objects--are discriminated against even more blatantly. (14) These women risk losing their jobs simply by asking to lift lighter loads or by asking to take a water break. (15) Women in corporate jobs face discrimination as well, but the discrimination is more subtle. (16) Some employers see pregnant women and mothers as less committed. (17) Some women even say that "getting pregnant is often the moment they are knocked off the professional ladder." (18)

   According to the Equal Employment Opportunity Commission ("EEOC"), the government agency tasked with reviewing employment discrimination claims, "[t]he number of pregnancy discrimination claims filed annually with the [EEOC] has been steadily rising for two decades and is hovering near an all-time high." (19) The growth of pregnancy discrimination claims demonstrates a continued need for more vigorous enforcement of the PDA, and for education about how the law affects employees and employers. (20) This also shows that there must be more done to protect women in the workplace. (21)

   This comment will examine the history of discrimination against pregnant women in the work force by reviewing noteworthy Supreme Court cases, the history of the EEOC and its guidelines, the passage of the PDA, and the PDA's effect on pregnancy discrimination today. (22) This comment will also discuss solutions which would give pregnant women more protection in the workplace. (23) Finally, this comment will discuss pregnancy discrimination and the protections that apply to pregnant workers in South Dakota. (24)

2. BACKGROUND

   In Employment Discrimination Law: Cases and Materials on Equality in the Workplace. Maria Ontivcros et al., states, "[d]iscrimination against pregnant women and women with children has long been among the most serious impediments to gender equality in the workplace." (25) Attitudes towards pregnant women in the workplace have shifted in the last several decades; this is partly because of the passage of the Pregnancy Discrimination Act. (26) The PDA was passed in 1978 as an amendment to Title VII of the Civil Rights Act of 1964. (27) Title VII of the Civil Rights Act of 1964 "prohibits employment discrimination based on race, sex, color, religion and national origin. Title VII applies to private employers, labor unions and employment agencies. The Act prohibits discrimination in recruitment, hiring, wages, assignment, promotions, benefits, discipline, discharge, layoffs and almost every aspect of employment." (28)

   Before Congress passed the PDA, the EEOC issued guidelines for employers to follow regarding discrimination in the workplace. (29) The EEOC was established under the authority of the Civil Rights Act of 1964. in order for the EEOC to pursue practice and pattern discrimination law suits with the purpose of eliminating unlawful employment discrimination in the private sector. (30) The EEOC interpreted Title VII to cover pregnancy. (31) In the EEOC's first ever report to Congress, it acknowledged that "policies would have to be devised which afforded female employees reasonable job protection during periods of pregnancy." (32) In the following seven years, "[the] EEOC worked to develop a coherent policy towards pregnancy-orientated employment practices both through the pursuit of its normal adjudicatory functions and by engaging in comprehensive sludies[.]" (33)

   Following the EEOC's studies and investigations, the agency released its first formalized, systematic statement on the employment policies that relate to pregnancy and childbirth. (34) The guidelines provided by the EEOC were meant to help employers understand their obligations regarding discrimination in the workplace. (35) The guidelines defined discrimination, gave examples of events that may occur in the workplace, and told employers how to handle the situations to prevent discrimination against their employees. (36)

   Before Congress passed the Pregnancy Discrimination Act, a few noteworthy Supreme Court cases, which disagreed with the EEOC's interpretation of Title VII, demonstrated a need for statutory protections for pregnant women against discrimination in the workplace. (37)

   1. GEDULDIG V. AIELLO

      The first case that established a need for statutory protection for pregnant workers was Geduldig v. Aiello, (38) a 1974 case from California, where an action was brought to challenge the constitutionality of a disability insurance program that precluded coverage from any work loss due to pregnancy. (39) The litigants sought protection against pregnancy discrimination under the Equal Protection clause of the Fourteenth Amendment and under the statutory protections of the Civil Rights Act of 1964. (40) Unfortunately, neither of those strategies were successful. (41) At the time, the California disability insurance system was funded entirely by the participating employees' wages. (42) Participation in this system was mandatory. (43) Each employee contributed one percent of their salary into this fund so they would be insured against the risk of disability, which could stem from a number of physical or mental illnesses or injuries. (44) Exceptions to the coverage for disabilities limited the number of weeks an individual could be paid for a disability, while also disqualifying disabilities that resulted from an individual's commitment as a drug addict, and "certain disabilities that [were] attributable to pregnancy." (45) The last exception--disabilities that were attributable to pregnancy--was at issue in Geduldig. (46)

      The appellants in this case were four women who had, over the course of their employment, paid a sufficient amount into the disability fund and were eligible for the benefits. (47) The appellants' disabilities stemmed from their pregnancies, only one of which was considered a "normal pregnancy," meaning the pregnancy had no medical complications. (48) The Unemployment Insurance Code defined "disability" or "disabled" as the following:

      "Disability" or "disabled" includes both mental or physical illness and mental or physical injury. An individual shall be deemed disabled in any way in which, because of his physical or mental condition, he is unable to perform his regular or customary work. In no case shad the term "disability" or "disabled" include any injury or illness caused by or arising in connection with pregnancy[.] (49) Before the District Court's decision was rendered in this case, the California Court of Appeals decided in Rentier v. California Unemployment Insurance Appeals Board that "payment of benefits on account of disability that result[ed] from medical complications arising during pregnancy" was not barred under the Unemployment Insurance Code. (50) The state court construed the statute to "preclude only the payment of benefits for disability accompanying a normal pregnancy." (51)

      Due to this decision, it was later decided that the three women whose disabilities were caused by complications outside the realm of a normal pregnancy became entitled to the insurance benefits and have been paid. (52) However, the woman whose disability stemmed from a normal pregnancy was still barred from receiving the insurance benefits. (53) Thus, the issue on appeal, presented through a writ of certiorari, was "whether the California disability insurance program invidiously discriminate[d] against [the appellant] and others similarly situated by not paying insurance benefits for [a] disability that accompanies normal pregnancy and childbirth." (54) In Geduldig, the Court ultimately held that denying benefits to pregnant workers was not a violation of equal protection. (55) The majority slated that the program treated men and women equally, and therefore did not apply a heightened standard of review. (56)

      In...