Pregnancy Discrimination in the Workplace

I. Introduction

Women continue to climb up the corporate ladder, and are becoming an important asset to companies. However, with an increase in the number of women in the workforce comes an increase in the number of women of childbearing age this poses a unique dilemma for human resources: to protect the rights of pregnant women. In the past decade, Pregnancy Discrimination suits have risen twenty-five percent (Flynn, 2002). There are a number of reasons behind Pregnancy Discrimination suits; Women are more likely now to continue back to work after the child is born, the passing of the Family Medical Leave Act made women more aware of their rights, and victims have more incentive to sue nowadays (Woodward, 2005). The Pregnancy Discrimination Act of 1978 requires employers to treat women equally and protect them before and after the pregnancy (Habig, 2008). This paper will investigate the legal issues before, after and during a pregnancy in the workplace.

II. Background/History

The Pregnancy Discrimination Act of 1978 is an amendment to the Civil Rights Act of 1964 (Scott, 2007). The Civil Rights Act of 1964 prohibits discrimination based on sex, particular pertaining to women (Zachery, 2010). One of the issues that arose from this Act was how this particular Act applied to pregnant women (Zachery, 2010). In order to address the issue Congress drafted the Pregnancy Discrimination Act (PDA) in1978 for the pursuit of employers to treat pregnant women equally and fairly (McDonald, 2008). The PDA specifically states that discrimination based on sex includes discrimination based on pregnancy, childbirth, or other related medical conditions (Zachery, 2010). Employers are to treat pregnant women the same way that the employer treats non-pregnant employees who are similarly able or unable to work (Zachery, 2010).

The Pregnancy Discrimination Act of 1978 and the Family Medical Leave Act of 1993 work alongside one another and should protect a working woman who chooses to bear a child from pregnancy (Scott, 2007). The Family Medical Leave Act will then enable her, if she is eligible, to take twelve weeks of family leave after the child’s birth without fear of losing her job (Scott, 2007). Pregnancy discrimination claims can arise from situations involving hiring, firing, and working conditions when a qualified pregnant woman is treated differently from a non-pregnant employee with similar ability or inability to perform job functions (Scott, 2007). Pregnancy discriminations suits arise from many different situations, and continue to be a problem in the workplace. In the United States the number of pregnancy discrimination cases filed with the Equal Employment Opportunity Commission (EOC) increased by 39 percent between 1992 and 2003 (McDonald, 2008).

There are many innovative programs working mothers have made possible; Workplace breastfeeding support programs which allow breastfeeding mothers to be in a comfortable work setting, and flex scheduling which allows a mother to adjust her schedule based on her unique needs (Scott, 2007). If mothers have an environment suitable to maintain the lifestyle of breastfeeding, they are more likely to breastfeed longer. Breast milk is a great benefit for growing babies, and employers who promote this are benefiting not only the employee but the baby as well. Flex scheduling for an employee, is scheduling based on her needs adjusting her work schedule with her unique schedule. It not only benefits the employee but it also benefits the employer because there would be no reason for an employee to be late or tardy. These programs allow a mother to make the transition of returning back to work much easier.

III. Challenges found in this area of HR:

Flynn (2002) states that many employers do not know how to treat a pregnant employee and this is why pregnancy discrimination claims have risen to 25 percent in the past decade. Pregnancy discrimination suits can arise from many different circumstances some include; questions related to pregnancy during and employment interview, termination because of pregnancy, not hiring a pregnant woman and adverse employment decisions such as being demoted from her current position (Zachery, 2010).

It is the role of Human Resource to ensure that supervisors and employees are aware of the ways that discrimination claims can arise (Zachery, 2010). HR has to make sure each companies policy is in order, no company should have a maternity leave policy, having one ensures that the company has room to discriminate instead every company should have a FMLA policy that adheres to state laws (Flynn, 2002). When an employee tells her employer she is pregnant it is imperative that the employer keeps comments that seem inappropriate to them but rather congratulate the employee and advise her to be familiar with the FMLA policy (Flynn, 2002). During a women’s pregnancy employers have to make sure they are treating the pregnant woman the same as treating someone with a temporary disability (Flynn, 2002). In the workplace everyone should be treated equally no matter what the situation may be. In situations regarding pregnant women being passed over for promotion it is HR’s role to make sure that it is not violation of PDA by ensuring that the company can demonstrate that there are comparable people in the promotion pool who also got passed over for promotion (Flynn 2002). In each one of these instance it is HR’s role to ensure that employers know that more than likely they have a chance in getting a lawsuit, proper documentation will be necessary if such discrimination suits were to be taking out on the company (Zachery, 2010). Documentation that is not properly documented or missing files will question the company’s credibility in a pregnancy discrimination case (Zachery, 2010). So it is very important that companies document anything that may be brought up in the future, not only for lawsuits but to look back on in case improvements may be needed.

IV. Benefits of implemented these programs:

Women should not have to choose between employment and bearing children, one of the benefits of implementing pregnancy discrimination legislation is so women are not forced to make this decision (McDonald, 2008). Pregnant women should not be forced to make a decision of choosing work over bearing a child. Pregnancy is a natural thing and is crucial to the survival of mankind for many generations to come. Many employees feel that pregnant women are a burden to the company, and that dealing with her pregnancy would result in reduction in productivity (McDonald, 2008). However, employers do not take into account the cost of not providing support and flexibility to pregnant women during her pregnancy. This cost may include turnover, absenteeism, legal suits and compensation if discrimination suit should arise (McDonald, 2008).

There is an increasing amount of pregnant women in the workplace that are suffering from pregnancy discrimination but do not report it because of lack of self confidence (McDonald, 2008). After the introduction of Work Choices and media attention more women are aware of their rights and are coming forward to make their discrimination known (McDonald, 2008). Being that most employers/managers are our male counterparts it is very imperative that we get rid of the stigma that pregnancy is a condition, this negative view has an effect on pregnant women in the workplace (McDonald, 2008). If employees actively engage with pregnant women in the workforce, it will likely contribute to business imperatives by reducing the high costs of turnover and absenteeism (McDonald, 2008).

V. Organization best practice/Role of HR

To avoid pregnancy discrimination employers simply have to treat pregnant women the same as they treat anyone else with a temporary medical condition (Woodward, 2005). Policies should be well written and clear for employees; there should be one policy that covers both pregnant employees and temporary disabled employees (Woodward, 2005). Optional options that employers should consider to offer to their employees are flextime and the option to switch from part time to full time (Woodward, 2005). Also companies need to make sure they are informing employees of their rights (Woodward, 2005). Next experts recommend that employers look at their attitudes and see if there are changes that need to be made to reduce discrimination in all aspects of the work force (Woodward, 2005). Training is a must; managers need to be up to date on policies as well as stereotypes that happen pertaining to pregnant women (Woodward 2005). It is up to a Physician to determine if a pregnant woman is able to perform her job, not the employer (Woodward 2005).

VI. Summary

Pregnancy is a natural occurring blessing for all mothers to be. No mother should have fear of losing her job due to becoming pregnant. The Pregnancy Discrimination Act protects pregnant women so that they don’t have to stress about things that should already be known. The stigma that pregnant women lessen productivity and bring about a negative image is false information. Pregnant women are able to perform the same tasks as everyone else unless medically noted. Society as a whole needs to realize that just because a woman is pregnant there is no need to put her out of work because of it. The decision should not be on the employer to determine if a woman can perform her job but rather on her physician. It is the law that employers have to treat pregnant employees the same as they would treat any other employee. This practice is important to follow so that employers will not be at risk for discrimination law suits. We as society should care because working mothers now have a voice, and now being a mother and being a professional are not mutually exclusive (Scott, 2007).