Workin' 9:00-5:00 for Nine Months: Assessing Pregnancy Discrimination Laws in Georgia
| Publication year | 2017 |
Workin' 9:00-5:00 For Nine Months: Assessing Pregnancy Discrimination Laws in Georgia
Kaitlyn Pettet
Georgia State University College of Law, kepettet22@gmail.com
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Kimberly Troupe worked at a Lord & Taylor department store as a saleswoman where her work was deemed entirely satisfactory.1 She became pregnant and started experiencing morning sickness, which resulted in her tardiness to work.2 In a period of one month, she was either late to work or left work early on nine out of twenty-one working days.3 The next month she arrived late on three consecutive days. 4 After receiving a warning from her supervisor, Troupe continued to arrive late due to her pregnancy symptoms and was soon after fired. 5 Troupe then filed a lawsuit claiming wrongful termination under the Pregnancy Discrimination Act.6 The Seventh Circuit Court of Appeals sided with Lord & Taylor, however, and upheld the termination.7
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Debrah Rhett worked for a real estate company and received a salary increase due to her satisfactory job performance. 8 Soon thereafter, she informed her supervisors and coworkers that she was pregnant and later left work on maternity leave.9 While on leave, the company faced an economic downturn and was forced to eliminate several positions, including Rhett's.10 Rhett filed a lawsuit alleging pregnancy discrimination.11 The Third Circuit Court of Appeals held that the company's actions did not violate the Pregnancy Discrimination Act.12
Suzanne Harvender became pregnant while working as a staff laboratory technician.13 She received a note from her physician recommending that she should not be exposed to chemicals during her pregnancy for fear of harmful effects on the fetus.14 The company then placed Harvender on twelve weeks of Family Medical Leave Act (FMLA)15 leave and stipulated that if she were unable to return
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to her job at the conclusion of the leave, the company would terminate her employment.16 Harvender responded by filing a lawsuit alleging pregnancy discrimination along with additional claims.17 The district court held that the company had not engaged in pregnancy discrimination.18
Cases such as Kimberly Troupe's, Debrah Rhett's, and Suzanne Harvender's demonstrate that there is still a considerable way to go before women are no longer forced to choose between pregnancy and keeping their career. Allegations of pregnancy discrimination in the workplace are also on the rise.19 In 1997, 4,000 plaintiffs filed complaints with the Equal Employment Opportunity Commission (EEOC).20 By 2011, that number rose to 5,800.21 The EEOC won
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significant damages in pregnancy discrimination cases, demonstrating a greater tendency towards discrimination in the workplace.22 Additionally, this rise in claims and awards caught the attention of the nation's media, placing new emphasis on the treatment of pregnant women in the workplace.23
Against this backdrop of continued struggles by pregnant women to have their rights fully acknowledged on the job, a number of states responded by passing employment laws that require reasonable accommodations for pregnant workers.24 States such as Illinois, Alaska, California, Connecticut, Delaware, Hawaii, Louisiana, and Maryland shifted in the direction of recognizing reasonable accommodations in the workplace similar to workers with disabilities under the Americans with Disabilities Act (ADA).25 In fact, some critics have gone so far as to argue that the ADA should be modified to include pregnancy on its list of protected categories.26 Most other states have thus far resisted this trend, however, and continue only to provide protections that are contained in federal law.27
This note will examine the history of the Pregnancy Discrimination Act (PDA) and some of the relevant case law that informs its application, while arguing that the state of Georgia should
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adopt legislation that strengthens protections for pregnant women in the workplace.28 The note will then analyze the Supreme Court's recent ruling in Young v. United Parcel Service and discuss the manner in which the decision will impact future jurisprudence concerning the Pregnancy Discrimination Act.29 Finally, the note will examine the state of pregnancy discrimination law in Georgia and how Georgia has dealt with the question of pregnancy existing as a disability requiring reasonable accommodations from employers. Currently, Georgia does not provide additional protections supplementing federal law against pregnancy discrimination and does not require accommodations beyond what is required by federal law.30 Accordingly, the note will propose statutory changes that Georgia should make to its existing employment laws to provide greater protections for pregnant women and to join the growing number of states requiring reasonable accommodations for pregnant women.31
In the early twentieth century, paternalistic laws intended to protect the health and safety of pregnant women were common.32 For example, an Oregon law restricted the number of hours a woman could work in laundries, and when challenged, the Supreme Court upheld the law.33 In delivering its opinion, the Court reasoned: "That
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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."34 In the 1940s, a government agency—the Women's Bureau of the Department of Labor—recommended that pregnant women not be permitted to work near the date of delivery or until at least two months after birth.35 Several states adopted laws based on this recommendation.36 In the mid-twentieth century, a number of states banned hiring women both before and after giving birth to their babies to ensure that children were being properly provided for and reared.37
Responding to pressure from advocates in the 1960s, the EEOC issued guidelines38 in 1972 holding that Title VII of the Civil Rights Act extended to pregnancy discrimination.39 The law developed in a mixed fashion, however, before the Supreme Court.40 On one hand, in Cleveland Board of Education v. LaFluer, the Court heard a
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challenge to school districts in Cleveland, Ohio requiring pregnant teachers to stop teaching by their fourth or fifth month of pregnancy.41 The school prohibited the teacher from returning to teach until the next regular school semester or until the child was at least three months old.42 To justify this policy, the school district argued for the need for continuity of instruction,43 the health of the teacher and the unborn child, 44 and the convenience of the administration.45 The Court held these practices violated the Due Process Clause of the Fourteenth Amendment.46 The Court reasoned that the Due Process Clause protected fundamental liberties pertaining to personal choices about child birth and the school district could not "needlessly, arbitrarily, or capriciously impinge upon this vital area of a teacher's constitutional liberty."47
On the other hand, two cases before the Court demonstrated the limits of the EEOC guidelines.48 In Geduldig v. Aiello, the Court heard a challenge to a California disability insurance program that excluded coverage for certain disabilities related to pregnancy.49 Contributions from participating employees funded the program, but not every disabling condition was covered.50 A denial of benefits resulted if a participating employee was committed as an alcoholic, drug addict, sexual psychopath, or pregnant woman.51 In its ruling, the Court rejected any notion that classifications based on pregnancy
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should be subject to heightened scrutiny.52 Instead, the Court found, "[t]here is no risk from which men are protected and women are not. Likewise, there is no risk from which women are protected and men are not . . . . The program divides potential recipients into two groups—pregnant women and non-pregnant persons."53 The Court held there was simply no connection between the "excluded disability and gender."54
In a second case before the Court, a pregnancy discrimination challenge under the Civil Rights Act of 1964 resulted in denial.55 In General Electric Co. v. Gilbert, General Electric provided an employee benefit for non-occupational sickness to all employees but specifically excluded any disabilities related to the pregnancy of its employees.56 Several female employees whose benefit claims were denied filed a class action lawsuit claiming that the plan violated Title VII of the Civil Rights Act.57 The district court reasoned that pregnancy was neither a "disease" nor "accident," rather it was a disabling condition for a period of six to eight weeks.58 The court of appeals affirmed the decision.59 The Supreme Court, however, reversed and held that General Electric's benefits program was not a form of pregnancy discrimination.60 The Court treated the exclusion
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of pregnancy as a form of risk management in order to keep the insurance plan available to all employees, and thus was "not discrimination based on gender at all."61 Despite the fact that only women can become pregnant, the Court held that pregnancy was not like other conditions that would typically constitute a disease or disability.62
Popular reaction to the Court's rulings in Geduldig and Gilbert was largely negative, with one spokesperson for a leading women's rights organization denouncing the decision as a "slap in the face to motherhood."63 Days after the Court handed down the decision, a coalition of feminists and women's groups created the Coalition to End Discrimination Against Pregnant Workers, vowing to "draft legislation to combat the high court ruling."64 Congress responded by holding hearings and then beginning work on new legislation that would...
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