Pregnancy and Discrimination Video Program

Panelists

Judy Langevin, a principal at Gray Plant Mooty who practices employment law. She defends employers in discrimination and wrongful termination litigation, including sexual harassment cases. She was also named a Minnesota Super Lawyer by Minnesota Law & Politics from 2003 to 2007.

Nicholas May, a partner with the law firm of May & O'Brien. He represents clients in their claims for discrimination, retaliation, failure to pay wages, whistle-blower violations, and sexual harassment.

Laurie Vasichek, a senior trial attorney with the federal Equal Employment Opportunity Commission. The commission enforces the federal Pregnancy Discrimination Act as well as other federal laws that prohibit discrimination based on race, gender, disability, and other protected classes.

The program was hosted by freelance journalist Rondah Kinchlow and produced by the Department of Human Rights in collaboration with SPNN. Check SPNN’s web site for the latest airtimes.

Introduction

Introductory comments -- Rondah Kinchlow: I'm Rondah Kinchlow, and today we're going to talk about pregnancy discrimination in employment. Although pregnancy discrimination has been illegal for 30 years, the number of pregnancy-related complaints continues to climb. In 2007, the number of charges filed with the federal Equal Employment Opportunity Commission, or EEOC, alleging discrimination based on pregnancy set a new record. Such charges jumped 14 percent over the previous year to 5,587. That is up 40 percent over just 10 years ago. And it's the biggest annual increase in 13 years. And those cases may only be the tip of the iceberg, according to the EEOC.

Is the fact that some employers continue to deny equal opportunity to pregnant women surprising? Well, maybe or maybe not. Pregnancy discrimination has a long history in the United States. For many years, state laws limited the types of jobs women could perform and the hours they could work on the belief that all women were, or would at some time, become mothers. Until the 1970s, employers could legally refuse to hire a pregnant woman or demote her, require her to take a leave, or fire her when she became pregnant. If an employer provided health insurance, coverage for a pregnancy and childbirth was often excluded.

The list of employers who have been accused of discriminating against pregnant workers includes small firms as well as some of the most prominent corporations in America, companies with familiar names like Verizon, Cigna, and Walmart. In 2006, Verizon agreed to pay a record-setting $49 million to 12,000 current and former female employees to settle a class action pregnancy discrimination lawsuit. Its predecessor companies had been accused of denying women their pensions and other benefits while they spent time on pregnancy or maternity leave. In that same year, a subsidiary of Cigna Corp. settled a case with the EEOC in which it agreed to pay $50,000 to a woman who had alleged the company had refused to hire her at one of its call centers after learning that she was pregnant. Back in 2003, Walmart paid $220,000 to settle a charge by a woman who allegedly applied for a job and was told to come back "after you have the baby."

It's clear that pregnancy discrimination can be expensive; in 2007 the EEOC collected $4 million from employers charged with violating the Pregnancy Discrimination Act. Yet employers large and small continue to engage in practices that have been illegal for decades. Why? And what do employers and employees need to know about their rights and responsibilities under the law? We're here to ask those questions and more, and we're going to do it by looking at a number of actual pregnancy discrimination charges that were filed with the Minnesota Department of Human Rights.

Kinchlow: We talk a lot about sex discrimination, age discrimination and racial discrimination. But pregnancy discrimation is also not new. When we talk about pregnancy-related complaints, what does that mean?

Langevin: There are a couple of laws that are involved here. For a long, long time, the Minnesota Human Rights Act has said that discrimination on the basis of pregnancy is a form of sex or gender discrimination. And it has said, "You can't do that," to employers. You can't discriminate against employees or applicants because they're pregnant or because they are affected by conditions related to pregnancy. And there's also been protection under the federal law for a number of years.

Vasichek: That's correct. Since 1978, the Title VII of the Civil Rights Act, which prohibits discrimination based upon race, color, national origin, religion, and sex, has included discrimination based upon pregnancy or pregnancy-related conditions. They are prohibited in the same way.

Kinchlow: So apparently we have arrived at this point because at some point, pregnancy discrimination was okay -- it was legal and not protected.

Vasichek: It was certainly accepted. It was part of the culture that people, women, could be treated differently because of pregnancy. Over time, however, the fact that that was a form of sex discrimination became acknowledged in both the state law and the federal law. And now it's very explicit. You cannot discriminate based upon pregnancy.

Kinchlow: And when does the protection begin? If I go into an office for an interview, and I am not noticeably pregnant but I am pregnant nonetheless, must I disclose to that potential employer that I'm going to have a baby pretty soon?

May: No, you're not required to disclose that during an interview. Obviously, at some point in time, if you're pregnant, those things become self-evident. But there's no requirement that you notify your employer or anything like that. And to the extent that it may be visible, or you do mention it to your employer and they take that into consideration in making the hiring decision, it does violate both Title VII and the Minnesota Human Rights Act.

Kinchlow: Is it a violation for them to ask me?

Langevin: Oh, yes. That would be an inquiry about your gender to ask whether or not you were pregnant. So I would never advise a client to ask that question.

Kinchlow: And yet is there any -- not "sympathy" -- but understanding that the employer that might feel a little duped, to find out one month after hiring this fantastic new marketing director, or this wonderful new employee, that they're going to be needing three or four months off pretty soon.

Langevin: We hear that from employers a lot. And they worry about the expense of having to deal with that absence by having someone fill in. They worry about whether or not the training that they've done or the salary that they've invested has been wasted or that the benefit is going to be delayed. But I think the law is pretty clear that that is part of the cost of doing business and that you are not allowed, except in the most exceptional circumstances, to say, "Hey, this is inconvenient for me, the employer, so I'm just not going to allow this individual to work here." They just can't do that, although certainly, there are business considerations that come into play and I understand why employers worry about it.

Kinchlow: If someone takes a pregnancy leave, do they come back to that same job? Are they guaranteed that job to come back to?

Langevin: That gets us into a different law. The guarantee of returning to exactly the same job at the end of your leave doesn't really arise under the anti-discrimination laws that we've been talking about so far -- the federal and the state laws that say you can't discriminate on the basis of sex. It does, however, exist in a different federal law and a different state law. There's a federal law called, the Family and Medical Leave Act, and it applies, generally speaking, to employers with 50 or more employees. So it doesn't apply to very small employers. But an employer with 50 or more employees must give any employee who is affected by a serious health condition or the birth or adoption of a child a 12-week unpaid leave of absence. Under the Minnesota law, it's a six-week unpaid leave of absence. And those two things can run at the same time. But if the employer is big enough -- 50 employees under federal law, 21 employees under state law -- that employer's going to have to give a person some time off and is going to have to return them to exactly the same job and rate of pay that they had.

Now, there are some other conditions. You have to work there a certain amount of time. Certain employers, even though they have 50 employees, may not be covered by this law because of where the employees are located. But the basic rule is that for larger employers, this unpaid leave has to be given, and the person has to be brought back and has the protection of being brought back into the job they had before.

Vasichek: There may be times that Title VII would require something similar. For example, if the employer was guaranteeing the job back for people who were temporarily disabled because of some other condition -- let's say they're injured in a car accident and the employer is allowing them to go out in some sort of extended leave and keeping the job open and returning them to the same job. They have to treat someone who is disabled because of a pregnancy-related condition the same way as they treat someone who is temporarily disabled because of other conditions under Title VII and under the Minnesota Human Rights Act.

Kinchlow: What are some other examples of discrimination? What if you're an employer, and you have an employee who is pregnant, and they're doing a task that you think may be unsafe for them. Can you make that decision for them, or must they request a change in assignment?

May: Unless there is some sort of medical thing from their doctor limiting them, generally (as an employer) you can't. My understanding is that these folks have to be allowed to do their jobs, and that they are the ones that make these decisions. There are some exceptions, some minor things that go around that, but the general rule is that they have to be allowed to do the job that they were assigned to do in the first place.

Langevin: I think the important concept here is that employers can't make assumptions about what the pregnant employee can or can't do, can't make assumptions about how much time off she wants, how much time off she'll need, and can't make assumptions about when she's going to start her leave or when she might be ready to come back from her leave. That's between the pregnant employee -- or the employee who's just had a child -- and her doctor.

May: Basically, what these laws say is, "Look, it's not right to make these same types of stereotypes about pregnant women." And again, these fall under the category of protective of sex, because obviously only women can get pregnant. But they're saying, "Look, when you make stereotypes based on somebody being pregnant, you're making a stereotype based on the fact that they're a woman and a condition that is unique to a woman."

Kinchlow: I think you bring up another point. You said that women are the only ones who can get pregnant; you are right. However, husbands and fathers and males can also take advantage of the leave of absence. Is that right?

Langevin: It depends. On family/medical leave, yes. And under both the federal and the state law, men and women, fathers and mothers, are able to take advantage of it. Obviously, men are not going to be affected by disabilities related to pregnancy or childbirth so the parts of the discrimination law that deal with that would not apply to men.

Vasichek: But let's take a situation, for example, where an employer allows women who have adopted children or who are now home because of a pregnancy-related condition to take time off to care for the newborn and don't give similar rights to the men in the workforce. I think that would be considered sex discrimination against the men, because they're not getting a benefit that women are getting.

Langevin: That's unrelated. The benefit that's being given doesn't have to do with the physical effects of pregnancy or childbirth. It just has to do with the need to be home with the new child. And that's another place that the line gets blurry. People assume that every leave related to a childbirth or adoption is somehow a physical disability leave or it's about the physical state of giving birth or being pregnant. And of course, it's not. Some are, but many aren't. Many are simply leaves that people want to take in order to be home with this new member of the family. And those leaves, absolutely, as Laurie pointed out, have to be available to men and women equally.

Kinchlow: There are some cases that we're going to talk about tonight. Here's one of the first ones.

Case 1: At an Airline

"I was employed as a ticket gate agent by an airline. I told my supervisor I was pregnant, and he told me that I would have to bring a note from my physician if I had any weight restrictions on what I could lift. My gynecologist gave me a note that restricted me from lifting more than 30 pounds. A few days later, a manager called me and told me there was no policy that protects pregnant women because pregnancy is not a medical condition. She gave me two choices: take a personal leave or get a note from my gynecologist saying I can lift and pull weights without restrictions. I was allowed to work the next day, but the day after that, I was sent home and told to come back when I had the note they had requested.

"They said if I could just get the note, I wouldn't really have to worry about heavy lifting because my coworkers could help me out. I finally got my doctor to write the note. It said, "Patient may lift luggage." But my supervisor said that was not sufficient. He said I had to show the doctor a form that contained the lifting requirements for a ticket and gate agent and have him state that I could perform that job with no restrictions. I talked with Employee Relations, and I was told once again that restrictions based on pregnancy would not be accommodated. I couldn't get a note that met the airline's requirement, so I was kept off work on medical leave without pay or benefits until my child was born. I know my coworkers would have assisted me with lifting. I know the airline has accommodated workers with conditions other than pregnancy by assigning them to light duty, in one case, for two months. I believe I was discriminated against based on sex and disability in violation of the Human Rights Act."

Kinchlow: And your thoughts are?

May: That's a good case... this employer's made a number of mistakes. First of all, explicitly telling this person that "we make accommodations for folks who aren't pregnant, but we're not going to do that for pregnant women," that in and of itself is a sort of an admission they're making, that they're engaging in gender discrimination.

Kinchlow: But they have a policy that defines pregnancy as not a medical condition.

Langevin: I don't think employers get to do that.

Vasichek: They can't define whether or not --

Langevin: They don't get to do that.

May: An employer's policy does not trump federal and state law. And regardless of what an employer puts in a policy, they still are making gender-based decisions. Because they're saying that pregnant women don't get this accommodation, that violates both state and federal law. And that was really the first mistake they made.

Vasichek: Oh, I think the first mistake was going to her before she even asked for an accommodation and saying, "You need a note from your doctor." Keep in mind, she just said, "I'm pregnant." And they say, "We need a note from your doctor before you can do this job." She hasn't requested an accommodation at that point. She hasn't said that she needs some help. She probably is getting along swimmingly in her workforce, but they still demand that she bring this note. And I think that's where you start -- there are problems.

Langevin: And of course, under the Minnesota Human Rights Act, there is a specific requirement that pregnancy-related limitations, disabilities or changes in ability, have to be accommodated. The employer has to provide a reasonable accommodation for that disability, a disability related to pregnancy. So if it's the case that this pregnant employee can't lift, but clearly, coworkers would have done the lifting for her, it looks as if it would have been possible to accommodate her. If this is a large enough employer, I just don't think there's any question about the employer's need, under the law, to provide her with accommodation.

Kinchlow: What about the doctor's note? The note was something that I could've written -- did the doctor need to write a more specific note?

May: My thought is there was no note necessary at all -- they are asking for a note from a pregnant woman, and not from others who may also have a need for an accommodation for lifting. That in and of itself is gender discrimination.

Langevin: There are times under both federal and state disability laws relating to disabilities more generally, and under the Family and Medical Leave Act, when employers can ask for specific information. But I agree that in this instance, there was no need. There was no right to ask for a doctor's note at all. And the question of whether or not the doctor's note was sufficient really is kind of moot.

May: This case would be a little different, I think, if they had a 30-pound lifting requirement or a 50-pound lifting requirement for everybody who did the job. If they weren't making those decisions based on the fact that she was pregnant, the employer's position in this case would be a lot better than it was.

Kinchlow: Here's the answer: In answering the charge, the airline argued that its policy, adopted as a cost-saving measure, is not to provide light-duty assignments for employees with temporary work restrictions unless those restrictions resulted from injuries on the job. It would not have been feasible to assign the employee to duties not requiring her to lift more than 30 pounds, given that her restrictions would have lasted for several months, the airline argued. The Department of Human Rights found that the airline's stated policy for work restrictions, that light duty be provided only when the restrictions resulted from injuries on the job, ignores the Human Rights Act requirement that employers make reasonable accommodations for pregnancy-related limitations. Now here's another case.

The opinions expressed in these programs are those of the participants and not necessarily those of the Minnesota Department of Human Rights or of Saint Paul Neighborhood Network (SPNN).