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You’re Pregnant? You’re Fired!

26

Did you get the message, loud and clear?  Now, workers are caregivers and caregivers are workers.  Discrimination against family caregivers and pregnant women at work is against the law.  This kind of bias is the most common form of gender discrimination occurring today.  Employers need to understand their legal duties, and women need to know their legal rights.

That was the rallying cry yesterday at the Equal Employment Opportunity Commission, where we heard stories of blatant discrimination against workers who were pregnant or caring for family members, usually children or elderly parents.   Time and again the commissioners were told “the workers and the caregivers are the same people.”  Mostly, these people are women, though the amount of caregiving done by men as fathers or adult children is climbing and will continue to grow with the aging population.  The time for public policy to take up the issues created by competing obligations of work and family is long overdue, the commissioners agreed.  While the Pregnancy Discrimination Act has been in force for 35 years, the behavior it was designed to stop continues in every industry, at every pay grade, and to all races and ethnicities of women.

Studies show that mothers earn less than women without children.  Controlling for all other factors which could otherwise explain the gap, there remains a 5% average decrease per child in a woman’s pay.  Women with children are viewed as less competent, less committed, and deserving of lower salaries.  In contrast, men with children generally earn more than men who are not fathers and are perceived as more reliable, steady, and motivated to do well.  In a blind comparison study, resumes of women with mention of PTA involvement were marked for follow up only half as often as resumes of women with no reference of a child-related activity.  Mothers may be passed over for promotion or not hired, as employers may apply stereotypes and generalizations about availability, absenteeism, and intelligence.

Discrimination against pregnant women takes a variety of forms.  Employers may assume her activities must be limited or restricted without her request or a doctor’s instruction, and discharge her or change work status or compensation.   Some suspend travel or overtime without the employee making the request.  A pregnant worker may be forced onto unpaid leave without her consent.  On the other hand, discrimination can also occur when a request is made for a modest accommodation, such as a stool to sit on, or snack breaks, bathroom breaks, time off for a prenatal visit, or avoiding toxic fumes or other substances that could adversely affect mother or child.  If such a change could be implemented but the employer refuses to do so, federal statutes have been violated.  In severe cases, pregnant workers have been subjected to physical testing or assigned to other tasks that non-pregnant workers were not.  This kind of different treatment is harassment and against the law.

At the other end of the lifespan, elder care demands the attention of a growing number of workers.  Caregivers over 50 may go in late, leave early, or have to stop working to care for another.  Those caregivers who remain employed may face discrimination based on their own age and their status as caregivers, again, as employers resort to assumptions and stereotypes rather than the particular facts and circumstances of an individual worker.  It has been reported widely that if the family members of the chronically ill, elderly or disabled did not assume these caregiving needs on their own, it would cost upwards of $450 billion dollars annually to provide them.

Those who have paid time off available still confront a “flexibility stigma” if they actually use it.  Men in particular are seen as weak, less masculine, and not serious about their jobs if they behave in a way that deviates from the classic male-breadwinner image.  So, even when an employer has a family leave policy, if the workplace culture demeans or diminishes its value or ridicules those who use it, the stigma, or “motherhood penalty,” still remains.  As expert panelist Joan Williams told the Commission, “Women will never achieve equality until mothers do.”

The Commissioners were told that many employers don’t know the obligations placed on them by the FMLA, Title VII, the Pregnancy Discrimination Act, and the Americans with Disabilities Act.  Public education is needed for pregnant women, too, who may be ignorant of their rights at work.  Nursing mothers in hourly jobs are covered by a federal law requiring breaks for expressing milk  in a private room for the first year of the child’s life, but many women are unaware.  On the other side, EEOC investigators need better training on how to investigate and pursue claims of discrimination against pregnant workers and caregivers.  Enforcement has been uneven and inconsistent, and better coordination between the EEOC, the Office of Personnel Management, the Department of Justice and the Department of Labor is needed.

In my opinion, if the women themselves know what the law is, they are in a good spot to make sure that the people around them know, too.

‘Til next time,

Your (Wo)Man in Washington

 

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