How Employers Get Away With Firing Pregnant Women -- Legally

pregnant women disability workAs a driver for UPS, Peggy Young sometimes had to lift up to 70 pounds on the job. When she got pregnant, her doctor said that probably wasn't a good idea and Young should stick to packages 20 pounds or less. Even though UPS routinely assigns "light duty" to injured or disabled employees, it put Young on unpaid leave. She lost her medical coverage.

Young sued in 2008. She lost, and joined the many other women who have tried, and failed, to prove their case in the courts. The Equal Employment Opportunity Commission received 5,800 pregnancy discrimination complaints in 2011, up from 4,000 in 1997. Complaints of pregnancy discrimination have become so common that the EEOC even held a hearing on the subject last month, examining how best to get employers to comply with the law.

Six states -- California, Connecticut, Illinois, Louisiana, Minnesota, New Hampshire, and Michigan -- currently have laws that require employers to provide pregnant women some accommodations. New York is considering its own bill to do the same.

Many legal advocacy groups, like Legal Momentum, A Better Balance: The Work & Family Legal Center, and the National Association of Mothers' Centers, are pushing for pregnant women to receive "reasonable accommodations" in the workplace, just like workers with disabilities under the Americans with Disabilities Act.

In a recently published paper in the Boston College Law Review, University of Dayton law professor Jeannette Cox argues that the act should actually be amended so that the ADA includes pregnancy. In other words, she wants to redefine pregnancy as a disability covered under the law.

Under the Pregnancy Discrimination Act of 1978, it's illegal for employers to fire, demote, reassign, or refuse to hire a woman for being pregnant. The law says that pregnant women should be treated just like any other employee, but that doesn't mean that they should be given any kind of special accommodation. Only Americans with disabilities are entitled to that.

The ADA defines a disability as an impairment that "prevents or severely restricts the individual from doing activities that are of central importance to most people's daily lives." In 2008, George Bush approved an amendment to the ADA, which means even more disabilities will be covered under the law, including more conditions linked to pregnancy and "episodic" impairments. Pregnancy itself, however, remains merely a "serious health condition."

In the Young case, UPS said that it didn't discriminate against her for being pregnant. UPS employees were entitled to "light duty" if they had been injured on the job, injured off the job and failed a Department of Transportation medical exam, or fell under the ADA.

None of these things were true for Young. She wasn't forced to take leave because she was pregnant, the judge ruled. She was forced to take leave because she couldn't do her job. UPS' rules were "pregnancy-blind."

Should Employers Be "Pregnancy-Blind"?

Despite the ADA and Pregnancy Discrimination Act, women have long been pushed out of their jobs due to their pregnancies; employers insisted they were "pregnancy-blind," and the courts agreed, upholding the dismissals.

  • A Lord & Taylor's saleswoman was fired because she was repeatedly tardy due to severe morning sickness. The court sided with the store.
  • A real estate company eliminated the position of a woman who was on maternity leave, receiving treatment for post-partum depression. The firm said it was easier to lay off someone who wasn't there, and the court said that was OK.
  • Norton Company placed a pregnant lab technician on unpaid leave, because her work involved exposure to toxic chemicals. The court dismissed her lawsuit.

"It is unconscionable that, nearly 35 years after passage of the Pregnancy Discrimination Act of 1978, women are still being forced to leave jobs, being denied basic and reasonable accommodations that would allow them to continue to work during pregnancy, and being paid less than other workers because of pregnancy and motherhood," said Congressman Jerrold Nadler (D-N.Y.), who is currently drafting legislation to address the problem.

Cox thinks re-classifying pregnancy as an impairment is one solution. If that happened, all the above incidences would be illegal, because they'd violate the ADA.

Pregnancy Redefined As A Defective State

Many women's advocates grimace at the idea of labeling pregnancy a disability, and sending the message that being with-child is a physically defective state. After all, that seems to feed into the stereotypes of pregnant women as incapable, fat, lazy and sick, which discrimination laws are there to protect against.

Cox says disabled people have long faced this problem. The ADA, she says, "forces them [disabled individuals] to acquiesce to the majority view -- that your body is defective -- in order to challenge the majority view that you can't work."

But the outcome, she says, has ultimately been positive. "Many think of the ADA (Americans with Disabilities Act) as a civil rights statute," says Cox, "empowering people with disabilities, and enabling them to challenge barriers that exclude them."

Many women over time have also feared that special legal protections in the workplace, beyond mere equality statutes, would backfire. They'd make it seem like women truly were the weaker sex, in need of coddling. They also run the risk of making women more expensive to employ.

"It's a debate internal to feminism," says Cox. "Do we want our laws to treat us equally, exactly the same? Or to give us equal employment opportunities, which account for our physiological difference and a history of exclusion?"

The question is likely to gain greater urgency, as more pregnant women remain in the workforce. Between 2006 and 2008, two-thirds of women pregnant with their first child worked through it.

Cox thinks defining pregnancy as a disability doesn't mean being pregnant is actually a condition like a slipped disc or a pacemaker. Rather, she believes disability under workplace law should be defined socially, and not just physically. The way pregnancy "interacts with the architecture and rules of the workplace," she says, makes it function like a disability in practice.

The ADA's purpose, according to Cox, is to reshape the workplace to allow the previously excluded to work like anybody else. And if the government wants to be true to the spirit of this statute, Cox believes pregnant women should be included in its project.

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Sarah Kennedy

What about the Federal Family Medical Leave Act.? It is supposed to protect woman who require maternity leave from being fired as long as the employer has fifty employees or more. I believe it allows up to 12 weeks for the birth or adoption of a child. I live in WI and we have a state FMLA law also. Many years ago my Union fought and won a woman's job back due to the Pregnancy Discrimination Act. That was before FMLA was law.

November 14 2014 at 11:20 PM Report abuse rate up rate down Reply
1 reply to Sarah Kennedy's comment

FMLA only applies to companies with 50 or more employees... this is a big barrier to people that work for smaller companies because it excludes them from having to follow that law making them effectively immune and giving the workers no rights.

January 28 2015 at 12:25 PM Report abuse rate up rate down Reply
Jimmy Voltron

So basically this problem was remedied 36 years ago with the Pregnancy Discrimination Act of 1978, but nobody is enforcing the law. The law has no "teeth." What is the point of laws if nobody enforces them? I'm not unsympathetic to employers' side, but they have been openly violating the law for 36 years and examples need to be made. Assets need to be seized and people need to go to prisons. Enough of this.

May 20 2014 at 4:51 AM Report abuse rate up rate down Reply

The USPS has the same clause as UPS. If you are a rural mail carrier you are only covered for accomadations if you hurt on the job. If you are sick, pregnancy, cancer, any injury or sickness that is not work related, you are not covered for accomendations. If you can not do your job, with no restrictions, then you have to use your sick time or vacation time, when that runs out you get Leave With No Pay. You will get to come back to work once you have no restrictions. They also do not have short term or long term disability pay. IF A GOVERNMENT JOB CAN DO THIS THEN I WOULD SAY ANY COMPANY CAN DO IT.

February 16 2013 at 7:38 PM Report abuse rate up rate down Reply

Re: the Young case wherein she couldn't do her job, which included being able to lift 70 pounds, while pregnant.
155 pages of Master Contract between the International Brotherhood of Teamsters and UPS and no protection for Ms. Young. Tell me again about why we need unions?

August 21 2012 at 11:44 PM Report abuse -1 rate up rate down Reply

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July 20 2012 at 7:56 PM Report abuse -1 rate up rate down Reply

In case any of you have "forgotten", men can take time off from work (same as the woman) when their child is born. So, why is it horrible for the woman to do so? Maybe if more people took care of their child and showed the baby that they were safe and their parent(s) would be there for them we wouldn't have the rotten children that know nothing about how to act running around. Most of them act this way because they do not have secure attachment because most of you aren't willing to sacrifice any of your time and care about a job more. If you are so selfish that you would take from a child, you should be ashamed of yourself!!

If you are bragging about not taking time off (male or female) to spend with your new child, I feel sorry for your child, glad it's better for someone else to raise the child, hope they are better than you! If you're complaining about someone else taking time off and it affects you at work, you need to complain to HR as they are legally capable of hiring a temporary replacement. Don't blame the parent taking time off.

In general, companies are not required to pay them their wages if they are pregnant, it's unpaid leave unless the person carries short term/long term leave insurance. With this, they generally receive 60% wages, but not from the company. The company is only required to have a position at the same level available to them at the end of the leave, released at doctor's approval. This is the same as any other serious medical condition.

May 19 2012 at 11:55 AM Report abuse rate up rate down Reply

The United States is the leader of the free-world. As such they should emulate (or even lead) other civilized societies in humane efforts harmonize labor laws that accommodate the needs of working women. So far the much of the labor laws negate and discourage family-hood. In UK and Canada (next door) women in their pregnancy get support at work and in society. Canada offers as much as a year of paid maternity leave to nursing mothers. And UK gives nursing moms as much as 39 weeks paid leave (with option to stay up to a year of unpaid leave for the remaining period) if they so choose. In the US, women are given only 6 weeks of maternity at the maximum. I think it is senseless and inhuman to maltreat women when they undergo their natural phase. The overall labor law in US definite needs some major re-visiting and revamping to accommodate its citizens.

April 05 2012 at 3:53 PM Report abuse +3 rate up rate down Reply

Perhaps it is because I lived in CA for the majority of my professional career, but I have a difficult time understanding why a company as large as UPS could not make a reasonable accommodation for an individual who was requesting, per a doctor's orders, a temporary change in duties. She would only be pregnant for 9 months. If, after the child was born, she could not perform the job she was hired to do then I say the company has every right to terminate employment. In the case of a small business or work environment that could not sufficiently modify her duties to meet the doctor's recommendation for limits for physical activity, then they should and are often held to an appropriately scaled set of guidelines. To place a pregnant woman on unpaid leave when the loss of medical insurance is an inevitable result not only puts the health of the unborn child in jeopardy, but could likely result in increased burden on the health care system when the family is suddenly faced with the prospect of unexpected hospital expenses that they may not be able to pay because she is in effect fired for her condition. To those who suggest that a woman choose between aborting her baby and keeping her job or keeping her child and facing an uncertain, unemployed future with looming debt (a 2 day hospital stay alone for a normal delivery of a healthy baby can run $7200, not including doctor fees and costs associated with any complications) I can only assume that you make your comments for the shock factor that they provide and could or would not be able to so coldly present those choices face to face with any woman that just discovered that she was pregnant.

April 05 2012 at 3:49 PM Report abuse +2 rate up rate down Reply

20 pounds or less? There must be a reason for that. My first pregnancy I was let go, they were concerned that I might get harmed, after one dizzy spell that I had the smarts enough to sit down. They were concerned because in my job in a store I was lifting bolts. The state of Texas decided they were wrong. I could collect unemployment and if I wanted to get another job I didn't have to tell them that i was currently pregnant. I did, worked until the week before, took 2 weeks off and returned to work.

My second pregnancy happened when I was in nursing school. I worked until the day before. Delivered on a Saturday and returned the following Monday for easy duty with my husband bringing our child in for me to nurse. He took his vacation and I finished so that I could graduate. The hospital and us students worked on a team approach, we lifted people with assistance. If done correctly, patients are much more comfortable and workers are not injured with heavy lifting. I was healthy, not everyone is as fortunate to have a good place to work or have excellent health.Years later, I was terminated for having to take time off for recouperation after breast cancer surgery because I hadn[t been at the medical center long enough to have medical leave (like cancer and its reconstruction waits). The state of Michigan sided with me and gave me 2 years unemployment if I wanted it. Employers can be ********. Or, employers can be fantastic. People get terminated-not because they are bad employees, but sometimes for health. Then again, my brother was promoted while he had cancer and they adapted his schedule to accommodate his needs for years.

April 05 2012 at 3:49 PM Report abuse -1 rate up rate down Reply

I wonder if the Teamsters are backing her.
If not, a lot of wasted dues

April 05 2012 at 3:49 PM Report abuse rate up rate down Reply
1 reply to Robert's comment

I saw no mention of her belonging to the union. However , even if they were unionized, it would depend upon the contract as to what was covered.

April 05 2012 at 5:22 PM Report abuse +1 rate up rate down Reply
1 reply to wllharrington's comment
Mayra Barcenas

I used to work for UPS. You much join their union (Teamsters) to work there.

October 06 2012 at 10:22 PM Report abuse rate up rate down

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