Pregnant employees, working mothers and the workplace - legislation, social change and where we are today.

• Author: Barnard, Thomas H.

1. INTRODUCTION II. THE SHORT-LIVED, LARGE-SCALE SHIFT FROM UNPAID HOUSEHOLD LABOR TO PAID WORKFORCE ENTRY DURING WORLD WAR II III. 1964 THE CIVIL RIGHTS ACT PROHIBITS WORKPLACE DISCRIMINATION ON THE BASIS OF "SEX" IV. BEFORE 1978--COURTS ARE DIVIDED AS TO WHETHER PREGNANCY-BASED DISCRIMINATION FALLS WITHIN THE DEFINITIONAL AMBIT OF PROSCRIBED "DISCRIMINATION ON THE BASIS OF SEX;" EARLY SUPREME COURT JURISPRUDENCE HOLDS THAT IT IS NOT INCLUDED V. 1978--CONGRESS AMENDS TITLE VII WITH THE PREGNANCY DISCRIMINATION ACT A. What is Equal Treatment? 1. Equal Treatment Does Not Mean That An Employer Can Take No Adverse Action Against a Pregnant Employee 2. Equal Treatment Means An Employer Cannot Make Adverse Employment Decisions Based on Assumptions About a Pregnant Employee's Ability to Perform Her Job B. Equal Treatment with Regard to Medical Benefits and Leave 1. The Meaning of Equal Treatment with Regard to Medical and Fringe Benefits 2. The Meaning of Equal Treatment with Regard to Pregnancy or Maternity Leave VI. BEYOND THE PDA: THE FMLA, OHIO LAW, AND PREGNANCY-RELATED WORKPLACE LEAVE A. The Family Medical Leave Act and Pregnancy-Related Workplace Leave B. Ohio Revised Code Chapter 4112, Pregnancy Discrimination and Pregnancy-Related Workplace Leave 1. Ohio Administrative Code Section 4112-5-05 Interprets Chapter 4112 to Require that an Employer Provide its Pregnant Employees Reasonable and Sufficient Leave 2. The Ohio Civil Rights Commission's Proposed Revisions to Ohio Administrative Code Section 4112-5-05 3. Has the OCRC Gone Too Far? VII. CURRENTLY UNPROTECTED BY LAW: BREAST-FEEDING, BREAST-PUMPING AND RELATED MEDICAL NEEDS A. An Amendment to Title VII May Be Necessary to Protect Lactating-Related Needs of New Mothers B. Proposed Analytical Framework VIII. THE PRACTICAL IMPACT OF TITLE VII AND THE PDA ON WORKPLACE POLICIES AND PROCEDURES: WHAT EQUAL TREATMENT MEANS TODAY A. "The Maternal Wall": Women's Workplace Advancement Stymied By Family Caretaker Roles 1. Popular Discourse Regarding Work-Family Balance in the 1970s and 80s 2. Modern Discourse Regarding Work-Family Balance: Discrimination Versus Choice and "the Opt-Out Hypothesis" 3. Redefining the Workplace Paradigm: Workplace Policies, Reinforcing Mother-Friendly Workplace Discourse and Implementing Fair Evaluation of Female Employees B. Why Do So Many Women Conclude That They Cannot Balance Family and Career Responsibilities (And Therefore Abandon Their Careers)? IX. CONCLUSION PREGNANT EMPLOYEES, WORKING MOTHERS AND THE WORKPLACE--LEGISLATION, SOCIAL CHANGE AND WHERE WE ARE TODAY I. INTRODUCTION

   Over the past 40 years, courts and employers have struggled to define the meaning of Title VII's implicit promise to provide and protect the employment opportunities available to certain classes of individuals. Pregnancy-based discrimination has posed an especially difficult challenge. Unlike other proscribed forms of discrimination, the unfair treatment of pregnant employees presents a unique analytical wrinkle: only women become pregnant, and women's ability to work is affected by pregnancy (including childbirth and/or related medical conditions). At a minimum, women must take a leave of absence to give birth and recover, physically, from childbirth. A woman with a more physical job--such as a police officer--will undeniably find that her pregnancy complicates her ability to perform that job. (1) How then do we define and enforce Title VII's promise of equal treatment and equal opportunity? If a pregnant woman cannot in fact perform her job duties while pregnant, how do employers ensure equal treatment of these temporarily disabled employees?

   In the past, employers--and courts--have cited the physical differences between men and women to justify treating female employees differently than their male counterparts. Indeed, case law prior to the passage of Title VII is replete with examples of court-sanctioned disparate treatment of the sexes based on this rationale. For example, in 1908, the Supreme Court penned the following opinion in Muller v. Oregon:

   That woman's physical structure and the performance of maternal functions place her at a disadvantage in the struggle for subsistence is obvious. This is especially true when the burdens of motherhood are upon her. Even when they are not, by abundant testimony of the medical fraternity continuance for a long time on her feet at work, repeating this from day to day, tends to injurious effects upon the body, and, as healthy mothers are essential to vigorous offspring, the physical well-being of woman becomes an object of public interest and care in order to preserve the strength and vigor of the race.... [The Mother] is properly placed in a class by herself, and legislation designed for her protection may be sustained, even when like legislation is not necessary for men, and could not be sustained.... This difference justifies a difference in legislation. (2) As evidenced by the above provision, according to the Supreme Court in 1908, a woman's innate physical inferiority justified both her protection but also her disparate treatment. Thus, first and foremost, a woman was defined by her childbearing capabilities. Further, according to the Court, it was "an object of public interest" that pregnant women receive particular, protectionist care--not just for her own sake, but also "to preserve the strength and vigor of the race." (3) The maintenance of a woman's health and childbearing capabilities, therefore, was not just her concern, but a societal one as well. (4)

   In 1964, with its passage of the Civil Rights Act, Congress proposed to change the face of the American workforce "to achieve equality of employment opportunities and remove barriers that have operated in the past to favor an identifiable group of white employees over other employees." (5) In that legislation, Congress provided a broad legal approach with which to address a complex social harm.

   Among other things, Title VII of the Civil Rights Act ("Title VII") provided that it is an unlawful employment practice for an employer "to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's ... sex...." With the passage of the Pregnancy Discrimination Act of 1978 ("PDA") nearly 15 years later, Congress made clear that Title VII's prohibition against sex-based discrimination included pregnancy discrimination.

   Although a century has now passed since the Supreme Court's decision in Muller, do remnants of the patriarchal views evidenced by that Court still survive today? Women are now more readily welcomed into the workplace, but do work-life balance challenges and perceptions of women's role as primary caretaker impede their ultimate professional success? Does a perception that a female employee will likely opt-out of the workforce to care for her family and concerns about pregnancy-related leave negatively impact female hireability? Are women's post-hire job performance evaluations and perceived promotability further affected by such concerns? More than 40 years after Congressional enactment of Title VII, and 30 years after the PDA, do modern workplace realities measure up to the lofty goals underlying that legislation? Today, there is no question that pregnancy-related discrimination is illegal, but we are still working through the ultimate contours and effect of that prohibition to this day.

   Accordingly, the focus of this Article is on the legal and social evolution resulting from the Civil Rights Act's prohibition of sex-based discrimination--and, in particular, pregnancy-related discrimination--in the workplace. Section II of this Article details the reluctance with which courts and employers initially extended workplace rights to women. Sections III and IV discuss Title VII's prohibition against "sex" discrimination and initial court hesitation to interpret that prohibition to include employees discriminated against on the basis of pregnancy. Sections V and VI provide an overview of federal and Ohio law granting pregnancy-related rights to women, including the PDA, the Family Medical Leave Act and Ohio Revised Code Chapter 4112. Section VII of this Article examines problematic pregnancy-related workplace perceptions, including how the modern woman's entry and acceptance into the workplace remains complicated by traditional notions of proper female roles. Finally, this Article asks whether stereotypical perceptions of what characteristics comprise the "ideal worker" (e.g., office "face-time") continue to feed negative perceptions of working mothers, slow their workplace advancement and ultimately contribute to many mothers' decisions to simply "opt-out" of their careers. Section VIII contains suggestions for legislative and corporate policy changes that speak to modern realities regarding pregnancy discrimination, specifically, and female workplace advancement, more generally.

2. THE SHORT-LIVED, LARGE-SCALE SHIFT FROM UNPAID HOUSEHOLD LABOR TO PAID WORKFORCE ENTRY DURING WORLD WAR II

   The country's workforce needs during World War II created significant new employment opportunities for American women. Although women have always "worked," much of that work was completed in their homes--i.e., unpaid household labor. (6) Other exceptions included the service industry and "pink collar" positions filled by lower-class women. (7) For example, women worked in restaurants as "dishwashers, silver cleaners, tray girls, cashiers, laundry workers and pantry hands," (8) as nurses, bookkeepers, stenographers, clerical workers (9) or secretaries. These women, however, were typically paid very little and were certainly paid less than men who worked identical jobs. (10)

   By and large, prior to the war, women were not considered for, or welcome to pursue positions of significance among the paid American workforce. This all changed with the entry of the United States...