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EEOC meeting underscores persistence of pregnancy and caregiving discrimination

At a public meeting on February 15 experts told the US Equal Employment Opportunity Commission that today, when most pregnant women want and need to work, and more workers are struggling to balance work and family, discrimination against pregnant women and workers with caregiving responsibilities remains a significant problem.

EEOC Chair Jacqueline A. Barrien noted that pregnancy discrimination in the 21st century workplace is persistent and it unnecessarily deprives women of the means to support their families. “Similarly, caretakers — both men and women — too often face unequal treatment on the job,” she said.

Pregnant workers. Even though the Pregnancy Discrimination Act was passed more than 30 years ago, women still often face demotions, prejudice, and even job loss when they become pregnant. According to panelist Emily Martin, Vice President and General Counsel of the National Women’s Law Center, the past 40 years have seen a major increase in the number of women choosing to work while pregnant and during the later stages of pregnancy. Moreover, women currently make up 47 percent of the nation’s work for, according to Bureau of Labor Statistics data cited by Judith Lichtman, Senior Advisor for the National Partnership for Women & Families. They are now the primary, or co-primary, breadwinners in nearly two-thirds of families. Because of this, “women cannot afford to lose their jobs or income due to pregnancy or childbirth,” Lichtman said.

Working caretakers. Additionally, both men and women face obstacles in their work lives because of their roles as caretakers. Panelist Lynn Friss Feinberg, Senior Strategic Policy Advisor at the AARP Public Policy Institute, told the Commission that the aging of the population and changing demographics mean that “42 percent of US workers have provided care for an aging relative or friend in the past five years,” and almost half of US workers expect to provide eldercare in the next five years. And the numbers do not include workers who care for children.

Workplace biases. Panelists provided many examples of the sort of discrimination that pregnant workers and workers with caregiving responsibilities face. Sharon Terman, Senior Staff Attorney at The Legal Aid Society Employment Law Center, described situations in which pregnant women were met with harassment and hostility in response to their pregnancies, or were subjected to decreased hours, forced unpaid leave, or job loss.

Professor Joan Williams, Director of the Center for Worklife Law at Hastings Law School and a leading expert on caregiver bias, recounted the story of a pregnant worker who was not permitted to alter her uniform due to her pregnancy but forced to take leave when it no longer fit her. Williams also pointed out examples of men who were penalized by their employers for requesting to use leave to which they were entitled for caregiving responsibilities, based on gender stereotypes that dictate caregiving should be “women’s work.”

Low-wage workers hit hard. While pregnancy and discrimination arising from caregiving impacts all segments of the workforce, low-wage workers are particularly affected, according to Maryanne Parker, Associate General Counsel of the Service Employees International Union. She noted that there has been a trend away from manufacturing and towards service sector jobs for low-wage workers — jobs which are much more likely to be part-time and low wage. These jobs often entail rigid work schedules with no flexibility or, on the other end of the spectrum, completely unpredictable schedules with no fixed hours from week to week, making it more difficult to plan for caregiving.

Motherhood wage penalty. Professor Stephen Bernard of Indiana University, who testified via video-conference, said that across the board, there is a measurable “motherhood wage penalty” of as much as 5 percent per child, controlling for education, experience, and other factors known to affect wages. He thought this may be due to unconscious stereotyping of the capabilities of mothers. “Motherhood constitutes a significant risk factor for poverty,” Bernard said, and it is possible that “the gender gap in wages may be primarily a motherhood gap.”

The way forward. The EEOC meeting was a follow up on Commission meetings in 2007, when the EEOC issued its groundbreaking Enforcement Guidance on Unlawful Disparate Treatment of Workers with Caregiving Responsibilities and in 2009 when the Commission issued Employer Best Practices for Workers with Caregiving Responsibilities. Unfortunately, as Chair Barrien put it, the Commission is still seeing things that could have been seen before the Pregnancy Discrimination Act was passed.

Several witnesses pressed for stepped-up enforcement and greater guidance on the subject, as well as closer coordination between the EEOC, which enforces laws prohibiting discrimination on the basis of sex, pregnancy, and disability, and the Department of Labor, which enforces the Family and Medical Leave Act and the Patient Protection and Affordable Care Act’s Break Time for Nursing Mothers provision of the Fair Labor Standards Act.

Deane Ilukowicz, Vice President for Human Resources at Hypertherm, a manufacturer that provides much work-life balance to its employees, explained that even when employers want to provide the maximum flexibility possible within the constraints of their businesses, they have trouble reconciling the requirements of the various laws affecting caregiving. She called for greater clarity and interagency coordination in order to help employers comply with the law and implement best practices for work-life balance.

Panelists also cited instances in which attorneys and courts have misapprehended exactly how pregnancy or caregiver discrimination may be proved in litigation, particularly noting the confusion surrounding the proper use of comparator evidence and what constitutes direct evidence of discrimination.

Professor Williams stressed the importance of additional guidance from the EEOC. She urged the Commission to consider issuing guidance that would clarify when circumstances related to pregnancy, such as a lifting restriction or a restriction due to increased risk of miscarriage, would require accommodation under the American’s with Disabilities Act as amended by the ADA Amendments Act. Williams also pressed for guidance on the relationship between the Pregnancy Discrimination Act and the ADAAA. In terms of increasing public and employer awareness of the law, Williams also noted that new guidance would reach the defense bar — this is key because defense attorneys will recognize that this new area of law is important to their clients and also use it in client development.

Comments. The Commission will hold open the February 15, 2012, meeting record for 15 days, and invites audience members, as well as other members of the public, to submit written comments on any issues or matters discussed at the meetings. Public comments may be mailed to Commission Meeting, EEOC Executive Officer, 131 M Street, N.W., Washington, D.C. 20507, or emailed to Commissionmeetingcomments@eeoc.gov.