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Motherhood and Employment: Pregnancy Discrimination in the Workplace

Friday, March 19, 2010
posted by Douglas Keene

Wal-Mart just settled a gender discrimination complaint by agreeing to pay about $12M in back wages and damages and to begin hiring women for warehouse jobs. Wal-Mart has also been involved in another form of gender discrimination lawsuit: pregnancy discrimination. And they are not alone. Despite the declining birthrate, pregnancy discrimination complaints are one of the fastest-growing types of employment discrimination charges filed with the Equal Employment Opportunity Commission (EEOC). It’s a trend that is not expected to end soon.

The Pregnancy Discrimination Act protects women from discrimination in hiring, firing, and returning to work post-parental-leave. In 2008, the National Partnership for Women and Families (NPWF) published a report examining reasons behind the skyrocketing number of pregnancy discrimination lawsuits between 1996 and 2005.

The main findings in this thirty year review of the Pregnancy Discrimination Act impact were these:

  • The growth in pregnancy discrimination claims during this time period was fueled largely by charges filed by women of color. (Claims overall increased by 25% but claims by women of color increased by 76%.)
  • Whether a woman was employed in a female-dominated industry or a male-dominated industry made no difference in filing of pregnancy discrimination complaints. (So female-dominated industries do not do a better job of not discriminating against pregnant women.)
  • Pregnancy discrimination charges increased in close to ¾ of states with 38 states reporting an increase in charges. (Texas, New York, Florida, Illinois, Pennsylvania, Ohio, Georgia, Indiana, Puerto Rico, and California were the top ten states in terms of the filing of pregnancy discrimination claims.)
  • There seems to be no single cause for the rise in pregnancy discrimination suits. The NPWF study hypothesizes that age-old stereotypes about gender combined with increasing numbers of women in the workforce are key reasons for rising numbers.

What this may mean for litigators is that it is difficult to draw a clear line between pregnancy and employment discrimination. But it is still possible. Educating jurors about the law will be essential. The more jurors understand about the protections employees have, the more they will be able to understand how your client was discriminated against. A graphic depiction of the law with indications of in what ways and at what times your client was discriminated against will likely be useful for jurors.

Effective litigation advocacy may mean focusing on the story of how discrimination happened in this specific scenario, but also concentrating on filling in a timeline with concrete and tangible events. That means things jurors can see and hear. For example:

  • The employer wrote this memo.
  • The supervisor said this.
  • This happened as the client became visibly pregnant.
  • The client returned to work and her job was gone.

Ambiguous ties to discriminatory behavior will be filled in by the jurors (“I know why they did this at that point”) if they have information on details about the law and behavioral evidence (i.e., things they can ‘see’ and ‘hear’) about the employer.   Testimony that explains why the laws and policies are important to society, not merely the pregnant woman, and why these policies and laws were enacted, will be important if Plaintiff is to overcome resistance by some.  Jurors who feel that policies of this sort put an undue burden on companies will need to be cajoled (by Plaintiff) or enflamed (by Defendant).  After all, how much accommodation is enough?

What jurors want to hear in order to support the Plaintiff is a pattern of behavior, or documentation of conduct that is not merely circumstantial.  What they will want to hear from Defendants if they are to acquit is that the employer has more than empty policies, that there is a demonstrable commitment to fulfilling their obligations under the law, and that the plaintiffs are unreasonable, whining, and opportunistic.  What we can’t know without more evidence than the Wal-Mart settlement is what affect the straining economy is going to have on juror perceptions.

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