By Joan C. Williams, Director of the Center for WorkLife Law,
Hastings Foundation Chair, University of California, Hastings College of the Law
williams@uchastings.edu; (415) 565-4706
Key pieces of legislation passed in the 1960s and 1970s – including the Equal Pay Act, Title VII, and Title IX – have greatly decreased, though not eliminated, direct discrimination in hiring and pay on the basis of gender alone. In the 1960s, men’s and women’s jobs were listed in different columns in the newspaper. Today, not only can an employer not specify sex in a job listing; if a woman can prove that she is doing a job that requires “equal skill, effort and responsibility” under “similar working conditions,” her employer must pay her the same as men.
Unfortunately, the progress of the past 50 years has not spelled the end for gender discrimination in the workplace. For instance, a 2007 study by Shelley Correll, Stephen Benard, and In Paik documented that motherhood triggers gender bias an order of magnitude larger than glass-ceiling bias against women in general.
In light of this, one vitally important and fast-developing area of law is family responsibilities discrimination (FRD), which involves pregnant women or mothers, fathers who seek an active role in family care, or adults caring for elders or ill family members. FRD suits grew 400 percent in the decade before 2008, and are becoming ever more important since they have moved into the class action arena. There, plaintiffs have won verdicts and settlements as high as $256 million. In one notable case, a class of sales representatives for a major pharmaceutical company obtained a $175 million settlement. One class member reported that her manager had said he preferred not to hire young females, explaining, “First comes love, then comes marriage, then comes flex time and a baby carriage.” Another class member alleged that employees were urged during a training session to avoid getting pregnant; five months pregnant at the time, this employee drew the eye of the trainer, who said “oops, too late.”
Today, the next legal frontier is whether pregnant women can be forced out of their jobs when they require modest workplace accommodations.For example, an administrative assistant asked to have her work station moved closer to the bathroom. Her employer’s response was to decide she needed immediate training in handling high explosives—such obvious retaliation that the Equal Employment Opportunity Commission sued and won $70,000 on her behalf. An extensive study by the Center for WorkLife Law revealed many other cases in which employers used women’s pregnancies as an opportunity to get rid of them.
Another case catches the flavor. A call center employee who suffered from severe nausea requested more frequent bathroom breaks as an accommodation. Her employer denied the bathroom breaks, offering instead to buy her a bigger waste basket. Clearly the employer did not expect her co-workers would sit beside someone else’s vomit; it expected the pregnant woman to quit. Many employers deny accommodations due to legitimate concerns with productivity, work process and fairness; but others (like this one) appear to be denying pregnancy accommodations as a way to force pregnant women to quit their jobs.
Women today have new rights under the Americans with Disabilities Act, according to a law review article by myself, Robin Devaux, and Danielle Fuschetti, to be published by the Yale Law and Policy Review in January 2014. While many pregnant women do not become disabled, many others experience pregnancy-related disabilities that entitle them to accommodation under the 2008 Americans with Disabilities Act Amendments Act. Examples are typists who experience pregnancy-triggered carpal tunnel syndrome, cashiers who need to use a stool rather than standing up for eight hours, and women who need to carry a water bottle due to persistent urinary tract infections (all common in pregnant women). The Center for WorkLife Law’s Pregnancy Accommodation Working Group has brought together doctors and lawyers to create resources to save pregnant women’s jobs, notably a set of model downloadable Pregnancy Accommodation Notes that will help doctors navigate disability law in ways that give fair notice to employers and protect the rights of pregnant women.
