Guest Post by Dave Casserly
One thing feminists talk about a lot, including in this blog, is the gender wage gap. The gender wage gap is exactly what it sounds like– the difference in wages between men and women doing the same or equivalent work. It exists, and it’s a huge way of enforcing patriarchy through women’s dependence on men. There are many causes, including conscious discrimination, women’s responsibility for childcare and other household duties, and wage secrecy, which I spend much of my professional life fighting. But I’m not here to tell you about those things. I’m here to talk about pregnancy discrimination, which has a difficult-to-measure but likely large effect on women’s opportunities in the workplace.
When I say pregnancy discrimination, I mean actions employers take against employees because those employees either are pregnant, were pregnant, or might be pregnant in the future. This includes not hiring pregnant women as a general policy, which, believe it or not, happens. In fucking 2013. Okay, maybe that link was from 2011 but the case just settled now, in 2013, and things haven’t changed all that much in two years. But pregnancy discrimination can be subtle, too, such as when women, particularly young, recently-married women, find it harder to get promoted or get important assignments because their employers think they might take maternity leave at some point. Or when employers retaliate against employees who take maternity leave.
Before 1978, pregnancy discrimination was legal. You might think it counts as sex discrimination, which has been illegal since 1964, but you’d be wrong. You might think that pregnancy would count as a disability, which means employers have to reasonably accommodate employees who are pregnant, but again, you’d be wrong. So instead, we have a hodgepodge of laws that can be used to help pregnant women facing discrimination, but none of them are adequate. The Pregnancy Discrimination Act, for instance, bars outright discrimination against pregnant women simply for being pregnant, but doesn’t require any kind of reasonable accommodation of pregnancy, and it doesn’t help much when women are forced out of jobs for taking maternity leave. The Americans with Disabilities Act protects women who have pregnancy-related illnesses if those illnesses rise to the level of a disability, but does nothing to help most pregnant women.
Unfortunately, with most workplace issues these days, there’s little hope. Wages have stagnated for four decades as inequality grows. Since 1995, traditional labor has taken on progressive causes, but has been hemorrhaging members and influence (although there is of course some hope for change there). Courts refuse to provide workplace protections to women who are discriminated against simply because their supervisor does not have the power to fire them.
But with a few issues, including paid sick leave and, yes, pregnancy discrimination, I’m hopeful that we’ll see real change. Some organizations are fighting for women in the workplace, through avenues such as legislation and changes to federal regulations. Requiring employers to reasonably accommodate pregnant workers, such as by allowing them to go on light duty or honoring lifting or bending restrictions won’t get rid of all pregnancy discrimination, and might not make a huge dent in the gender wage gap. But it can definitely help, and more than that, might start to change how employers think about women in the workplace– instead of seeing them as possible efficiency-destroying baby machines, employers might realize, once they start accommodating pregnant workers, that childbearing is not so horrible as to warrant paying women far less than men.
So what can you do if you’re discriminated against on the basis of pregnancy, taking maternity leave, or something similar? First, go to the EEOC. They aren’t perfect, but they might be able to help. Also, the National Women’s Law Center has been collecting stories of women who have faced workplace pregnancy discrimination. Sharing your story helps!
Dave Casserly is a feminist labor lawyer living and working in Washington, DC.