Happy 30th Anniversary – Time to Change the Pregnancy Discrimination Act?
by Sima Matthes
Although 2007 showed an increase in reported pregnancy discrimination complaints to the EEOC (up 14 percent from the previous year and up 40 percent from 10 years ago), it is only certain recent case in the UK and a pending case before the US Supreme Court that have brought the issue front and center for public debate.
According to the Sunday Times in the UK, Sarah Vince-Caine won £120,000 in compensation for unfair dismissal and sex discrimination from her former employer, the Giorgio Armani group. She sued the company after she was pushed into a lower-level role and eventually fired after her second maternity leave.
Although this represents a victory for Ms. Vince-Caine, Nicola Brewer, chief executive of the Equalities and Human Rights Commission, in a separate statement, remarked “If the world of work is premised on the assumption that a woman will take a year off, that loads the dice against her.”
Back on this side of the pond, in June, the U.S. Supreme Court agreed to hear a case that could affect thousands of retirees who took pregnancy leave before the Federal Pregnancy Discrimination Act took effect in 1978.
The case challenges an AT&T policy that limited service credits available during pregnancy leave, resulting in lower retirement benefits for women who took leave prior to 1979. The women each took between 67 and 261 days of uncredited maternity leave between 1968 and 1976. At that time, AT&T classified maternity leave as personal leave and only allowed for 30 days of coverage while employees on disability leave had unlimited coverage. The plaintiffs argue they should be eligible for the same retirement benefits as employees who took other kinds of otherwise unlimited disability leave.
The San Francisco Chronicle reported that AT&T is urging the high court to “declare a uniform national standard”, writing that it is “fundamentally unfair to employers and employees for the same national benefits plan to result in different benefits solely as a function of geography.”
Whether the Court reverses its long silence on pregnancy discrimination—its last decision on the matter was over 10 years ago—remains to be seen. It’s clear that the Court’s unwillingness thus far to assign constitutional protection to pregnant women is part of the problem when it comes to enforcement of EEOC policies. Without the additional consequences inherent in a constitutional violation, employers have less incentive to comply.
It appears that the Federal Pregnancy Discrimination Act of 1978 has not yet become part of the collective corporate conscience. Part of this is a lack of an understanding of pregnancy as a protected disability; the other issue is a lack of women, pregnant or not, in the corporate hierarchy. There’s also another part: the way women are put at a disadvantage by the assumption that women will always be the ones to deal with childcare.
“The Work and Families Act has not freed parents and given them real choice. It is based on assumptions, and some of the terms reinforce the traditional pattern of women as the carers of children,” said Nicola Brewer.
While tradition dictates diamonds or pearls for a 30th anniversary gift, maybe what we need in the United States is a whole new kind of gem – constitutional protection for pregnant women against discrimination and maybe, just maybe, equal parental leave for both men and women.
