Pregnancy Discrimination Act

Pregnancy Discrimination Act (PDA), a 1978 amendment to Title VII of the Civil Rights Act of 1964, prohibits workplace discrimination on the basis of pregnancy. The impetus for the act was a 1976 Supreme Court decision, General Electric v. Gilbert, in which the Court held that denial of benefits for pregnancy-related disability was not discrimination based on sex (Gelb,1996). This holding echoed past management decisions by which married women faced job discrimination and pregnant women were routinely fired. By 1977, women made up more than 45 percent of the labor force, but only one-quarter had insurance plans that allowed sick leave for pregnancy-related illness. Reaction to the Gilbert decision was swift. Women’s organizations, feminists, labor and civil rights advocates, and some right-to-life groups formed a coalition known as the Campaign to End Discrimination Against Pregnant Workers to seek legislative relief from the Court’s decision. Legislation to amend Title VII and overturn Gilbert was introduced in Congress in 1977 and passed, as the Pregnancy Discrimination Act, one year later. Federal Pregnancy Discrimination Act 1978 The Federal Pregnancy Discrimination Act, which became effective in October 1978, states the discrimination on the basis of pregnancy, childbirth, or related medical conditions are unlawful under the Title VII of the Federal Civil Rights Act. This Act ensures that women, affected by pregnancy and related conditions, are rated on the basis of their ability or inability to work. Therefore, it is unlawful to terminate or refuse to hire or promote because of pregnancy be

2 accorded disability benefits, sick leave and health insurance at least on the same basis as employees unable to work for other medical reasons. Disability Act There are many reasons why the Americans with Disabilities Act were passed. All are very different, but similar in that they all relate to one subject. It was created to make it easier for Americans with disabilities to become employed. The Americans with Disabilities Act is designed to protect an individual’s civil rights by promoting equal opportunity and equality of access for travelers with special needs. It protects the civil rights of travelers with disabilities to equal access to goods and services offered by public service providers. Another purpose of the Americans with Disabilities Act is to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities. It was also passed to provide clear, strong, consistent, and enforceable standards addressing discrimination against those individuals. It was passed to ensure that the Federal Government plays a central role in enforcing the standards established in this act on behalf of individuals with disabilities. The final reason, but obviously not the least important, is that it was passed to invoke the sweep of congressional authority, including the power to enforce the fourteenth amendment and to regulate commerce, in order to address the major areas of discrimination faced day-to-day by people with disabilities. Introduction The PDA prohibits discrimination against pregnant women in all areas of employment, including hiring, firing, seniority rights, job security, and receipt of fringe benefits. The most 3 controversial features of the bill have been those requiring employers who offer health insurance and temporary disability plans to give coverage to women for pregnancy, childbirth, and related conditions. Although by 1977 many major corporations were already providing such benefits, business associations argued that pregnancy was a “voluntary condition,” not an illness, and that the bill would raise insurance costs. The PDA does not, however, require employers who do not offer health insurance or disability benefits at all to adopt such plans, and Title VII applies only to employers with fifteen or more employees. These provisions leave many female workers unprotected by the act. Discussion In 1978 Congress amended Title VII of the Civil Rights Act of 1964 to enact the Pregnancy Discrimination Act (PDA) (P.L.95-555, 92 Stat.2076). This act was passed to reverse the Supreme Court’s decision in General Electric Company v. Gilbert (1976) in which the Supreme Court held that Title VII’s prohibition against “sex” discrimination does not include a ban on pregnancy-based discrimination. Title VII generally bans sex discrimination in employment. By amending Title VII, Congress extended that prohibition to include pregnancy-based discrimination. In Gilbert, the Supreme Court held that General Electric’s disability plan did not discriminate against women in violation of Title VII when it provided coverage for virtually all nonoccupational illnesses and accidents except pregnancy. Quoting analysis that it had used in a previous constitutional law decision, the Supreme Court explained that General Electric’s plan did not constitute sex discrimination because “the program divides potential recipients into two groups-pregnant women and nonpregnant persons. While the first group is 4 4 exclusively female, the second includes members of both sexes” (Geduldig vs. Aiello [1974]). Title I of the Americans with Disabilities Act of 1990 prohibits private employers, state and local governments, employment agencies and labor unions from discriminating against qualified individuals with disabilities in job application procedures, hiring, firing, advancement, compensation, job training, and other terms, conditions, and privileges of employment. The ADA covers employers with 15 or more employees, including state and local governments. It also applies to employment agencies and to labor organizations. The ADA’s nondiscrimination standards also apply to federal sector employees under section 501 of the Rehabilitation Act, as amended, and its implementing rules (Weisberg, 1993). Congress passed the PDA to reverse the holding in Gilbert, but in doing so Congress went well beyond the fact pattern presented in the Gilbert case. It provided broad antidiscrimination protection to pregnant women, not simply disability-plan protection. The mechanism chosen by Congress to achieve this objective was to amend Title VII’s definition of “sex” discrimination to include pregnancy-based discrimination. It defined the term “because of sex” to include discrimination “on the basis of pregnancy, childbirth or related medical conditions.” It required that “women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes, including receipt of benefits under fringe benefits programs, as other persons not so affected but similar in their ability or inability to work.” Congress’s intention to provide broad protection to women on the basis of pregnancy is reflected in the act’s legislative history. Representative Augustus Hawkins, Democrat of 5 5
California, introduced the act on the floor of the House, making it clear that the purpose of the Act was to ban broadly discrimination on the basis of pregnancy. The Senate Committee on Human Resources and the House Committee on Education and Labor authored strong reports supporting a broad interpretation of the act. Despite the considerable support for the PDA within Congress, the courts were soon faced with difficult questions of interpretation under the act. First, the courts had to determine whether men could bring a cause of action under the statute if pregnancy hospitalization benefits were not available to their spouses under the employer’s health care policy (while all other conditions were covered). In a 7-2 decision, Justice John Paul Stevens wrote the Court’s opinion in which he concluded that the act does provide a cause of action for male workers in that situation. Finding that Congress had disavowed the Court’s earlier decision in Gilbert, the Supreme Court held that sex discrimination, as defined by Congress, did include pregnancy-based discrimination that creates economic harm for a male employee by providing him with a less favorable insurance policy than provided to employees without pregnant spouses. While the language of the act did not specifically address this problem, Justice Stevens concluded that coverage of that situation was wholly consistent with Congress’s intentions when it enacted the PDA. Employment
• Employers with 15 or more employees may not discriminate against qualified individuals with disabilities. For the first two years after July 26, 1992, the date when the employment provisions of the ADA went into effect, only employers with 25 or more employees are covered. 6
• Employers must reasonably accommodate the disabilities of qualified applicants or employees, unless an undue hardship would result. • Employers may reject applicants or fire employees who pose a direct threat to the health or safety of other individuals in the workplace. Applicants and employees are not protected from personnel actions based on their current illegal use of drugs. Drug testing is not affected. Public Accommodations
• Public accommodations such as restaurants, hotels, theaters, doctors’ offices, pharmacies, retail stores, museums, libraries, parks, private schools, and day care centers, may mot discriminate on the basis of disability, effective January 26, 1992. Private clubs and religious organizations are exempt. • Alterations must be accessible. When alterations to primary function areas are made, an accessible path of travel to the altered area (and the bathrooms, telephones, and drinking fountains serving that area) must be provided to the extent that the added accessibility costs are not disproportionate to the overall cost of the alterations. Elevators are required as described above. • Entities such as hotels that also offer transportation generally must provide equivalent transportation service to individuals with disabilities. New fixed-route vehicles ordered on or after August 26, 1990, and capable of carrying more than 16 passengers, must be accessible.

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• Public accommodations may not discriminate against an individual or entity because of the known disability of an individual with whom the individual or entity is known to have a relationship or association. • Individuals may bring private lawsuits to obtain court orders to stop discrimination, but money damages cannot be awarded. • Individuals can also file complaints with the Attorney General who may file lawsuits to stop discrimination and obtain money damages and penalties. EEOC Perspective
According to the EEOC, the Pregnancy Discrimination Act requires employers to treat pregnant women the same way they treat other employees or job applicants. There are several ways in which pregnant women are protected including the following: Any employer-provided health insurance plan must treat pregnancy-related conditions the same as other medical conditions. Pregnant employees cannot pay a larger health insurance deductible than other employees pay. Employees with pregnancy-related disabilities must be treated the same as other temporarily disabled employees for accrual and crediting of seniority, vacation calculation, pay increases, and temporary disability benefits. It is also unlawful to retaliate against an individual for opposing employment practices that discriminate based on pregnancy or for filing a discrimination charge, testifying, or participating in any way in an investigation, proceeding, or litigation under Title VII. 8
Unfortunately, pregnancy discrimination remains fairly common. The EEOC received 5,587 charges of pregnancy-based discrimination in 2007. EEOC resolved 4,979 pregnancy discrimination charges in FY 2007, up from 3,977 ten years earlier in 1997. In 2007, the EEOC recovered $30.0 million in monetary benefits for charging parties and other aggrieved individuals (not including monetary benefits obtained through litigation). Impact
The combination of the PDA and FMLA provides pregnant women with stronger job protection than at any time in our nation’s history. Many women desire Congress to go further and guarantee paid leave to pregnant workers (Hoff, 57). Still others assert that they continue to face subtle forms of pregnancy based discrimination that are difficult to prove in a court of law. Nonetheless, gone are the days when an employer may lawfully insist that a woman quit her job upon learning that she is pregnant, and because of the PDA and associated rulings, women do have legal redress available when overt acts of pregnancy-based discrimination occur. About 75 percent of the 68 million women working in the United States will become pregnant at some point in their lives. Between 1196 and 1999, 81.5 percent of women who worked while pregnant with their first child returned to work within a year of giving birth. How Does the Pregnancy Discrimination Act Protect You? According to the Equal Employment Opportunity Commission (EEOC), the Pregnancy Discrimination Act requires employers to treat pregnant women the same way they do other employees or job applicants. Here are several ways in which pregnant women are protected: 9
• An employer cannot refuse to hire someone because she is pregnant or has a pregnancy related condition. • An employer can’t require a pregnant woman to submit to special procedures in order to determine whether she can perform her job duties unless the employer requires all employees to submit to those procedures. • An employer must treat a pregnant woman who can’t perform her job due to a medical condition related to her pregnancy the same way he treats all temporarily disabled employees • An employer may not keep a pregnant woman from working or prohibit a woman from returning to work after giving birth. • Any employer-provided health insurance plan must treat pregnancy related conditions the same as other medical conditions. • Pregnant employees cannot pay a larger health insurance deductible than other employees pay. What to Do If Your Boss Fails to Abide by the Pregnancy Discrimination Act? According to “How to Protect Yourself Against Pregnancy Discrimination” (Susan Freinkel, “How to Protect Yourself Against Pregnancy Discrimination, “Babytalk, April 1998, 75-76), many women are fired or passed over for a promotion after they announce their pregnancy. The Equal Employment Opportunities Commission (EEOC) received 6,196 charges of pregnancy-based discrimination in 2009. Clearly, many employers are disregarding the Pregnancy Discrimination Act. If you feel your boss has failed to abide by it, you can file a 10 charge with the EEOC. Go to the EEOC Web Site and read the rules for Filing a Charge of Employment Discrimination. Conclusion All women in the workforce are always protected by the PDA by virtue of their ability to become pregnant, and they are not required to do anything to qualify for its protection. Under the Pregnancy Discrimination Act, employers with more than 15 employees are required to treat women who are affected by pregnancy or related conditions the same way they treat other employees with temporary disabilities. The PDA not only prohibits facially discriminatory policies that limit or preclude women from performing specific jobs simply because they are fertile or pregnant but also prohibits actions by employers that result in disparate treatment or impact toward women because of their ability to become pregnant. Additionally, an employer cannot refuse to hire a pregnant woman because of her pregnancy or because of a pregnancy-related condition.

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References
Gelb, Joyce, and Marian Lief Palley. Women and Public Policies. 2d ed., rev. and exp. Princeton, N.J.: Princeton University Press, 1987. Rev. ed., Charlottesville: University Press of Virginia, 1996. Hoff, Joan. Law, Gender, and Injustice: A Legal History of U.S. Women. New York: New York University Press, 1991. Vogel, Lise. Mothers on the Job: Maternity Policy in the U.S. Workplace. New Brunswick, N.J.: Rutgers University Press, 1993. Weisberg, D. Kelly, ed. Feminist Legal Theory: Foundations. Philadelphia: Temple University Press, 1993.

References: Gelb, Joyce, and Marian Lief Palley. Women and Public Policies. 2d ed., rev. and exp. Princeton, N.J.: Princeton University Press, 1987. Rev. ed., Charlottesville: University Press of Virginia, 1996. Hoff, Joan. Law, Gender, and Injustice: A Legal History of U.S. Women. New York: New York University Press, 1991. Vogel, Lise. Mothers on the Job: Maternity Policy in the U.S. Workplace. New Brunswick, N.J.: Rutgers University Press, 1993. Weisberg, D. Kelly, ed. Feminist Legal Theory: Foundations. Philadelphia: Temple University Press, 1993.