"There must be little doubt that women who are in the work force—by choice, by financial necessity, or both—confront a serious disadvantage after becoming pregnant. They may find it difficult to continue to work, at least in their regular assignment, while still taking necessary steps to avoid risks to their health and the health of their future children. This is why the difficulties pregnant women face in the workplace are and do remain an issue of national importance."
-Justice Kennedy in Young v. United Parcel Service
* * * * *
The United States
The Pregnancy Discrimination Act (“PDA”)[i] is an amendment to Title VII of the Civil Rights Act making discrimination based on pregnancy and its related conditions a form of sex discrimination.[ii] The protected class under the PDA is women generally, not specifically pregnant women, thereby assuring that women are afforded the same opportunities as men.[iii] Moreover, the PDA does not impose an affirmative obligation on employers to grant preferential treatment to pregnant women.[iv]
The Civil Rights Act provides two ways for pregnant employees to prove discrimination: disparate treatment[v] and disparate impact.[vi] Both tests require the pregnant employee to demonstrate that someone similarly situated[vii] was treated differently. By making gender the exclusive issue as opposed to recognizing pregnancy as a gender specific medical condition, courts have rendered decisions such as Stout and Lang.[viii] In these cases, pregnant employees who were absent due to medical restrictions brought on by their pregnancy were denied relief because the plaintiffs could only compare themselves to men or non-pregnant women, neither of whom have been found by courts to be “similarly situated” to the pregnant employees.[ix]
Despite the fact that pregnancy is a medical condition, it is not recognized as a disability or illness that would grant protection under the Americans with Disability Act.[x] For example, in the 2015 case Young v. UPS, a pregnant employee’s doctor placed her on a lifting restriction of twenty pounds.[xi] When she submitted a request to her employer based on this medical restriction, she was denied because the employer only granted modified assignments to employees with work-related injuries or illnesses.[xii] Moreover, the court specifically held that employees with work related injuries were not a similarly situated group of people.[xiii]
Consequently, despite the fact that the PDA explicitly states "women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes,"[xiv] courts disregard the statutory phrase "related medical conditions" when the medical conditions negatively impact the pregnant employee’s performance or productivity.
The European Union
The Pregnant Workers Directive (“PWD”)[xv] is a distinct directive separate from the general non-discriminatory employment practice directive.[xvi] The PWD makes pregnant women, women who have recently given birth, and breastfeeding women a specific protected class distinct from both men and non-pregnant women. This distinction was purposeful because the European Council recognized that pregnancy was one situation in which requiring equal treatment between genders alone would not create protection against discrimination.[xvii]
For example, in Webb v. EMO Air Cargo (U.K.) Ltd., a British temp employee who was brought in to replace a pregnant employee became pregnant herself.[xviii] The British House of Lords sought guidance from The European Court of Justice (“ECJ”) by asking if an employer could discharge a male employee that was brought in to replace a man with a certain illness who then later also had the same illness in order to assess whether or not it was discriminatory to apply the same logic to pregnant employees. In response to the question the ECJ explicitly stated: “There can be no question of comparing the situation of a [pregnant] woman . . . with that of a man for medical or other reasons.” [xix]
In Handels-ogKontorfunktionWrernesForbundI Danmark v. Fwllesforeningen, a female telemarketer began missing work during her six month contracted period of employment due to her pregnancy.[xx] In response, the ECJ explicitly held that termination due to absences related to pregnancy was pregnancy discrimination.[xxi] This principle was reinforced in Tele Danmark A/S v. Handels-og KontorfunktionWrernes ForbundIDanmark(HK)[xxii] where the ECJ stated “[s]uch discrimination cannot be justified on grounds relating to the financial loss which an employer who appointed a pregnant woman would suffer.” [xxiii]
However, as progressive as this policy seems, this policy does have limits. In 2014, mothers who use surrogates to conceive and give birth have been excluded in the protected class of pregnant women. In C-D v. S-T[xxiv] the court held that “the grant of maternity leave presupposes that workers entitled to such leave has been pregnant and given birth to a child.”[xxv] Consequently, the denial of paid leave was not considered sex discrimination because the new mother was in the same position as most fathers.[xxvi]
U.S. case law characterizes pregnancy as a choice rather than a medical condition. The holding in Young implies that, because an accident is something that an individual cannot control, a worker involved in an accident should be compensated; becoming pregnant, on the other hand, is a choice a woman makes, so she should accept all of risks that pregnancy brings. Based on the structure of the PDA, pregnancy is pitted against other worker, not others with medical conditions. Thus, the only thing employers need to prove for legal purposes is a loss of productivity.
By contrast, the European approach emphasizes the medical condition of pregnancy as the criteria for being in the protected class. This limitation is commendable because it distinguishes pregnancy from the negative stigma of being compared to an illness or disability. On the other hand, the PWD is extremely heavy handed. Based on the reviewed cases, any adverse treatment against a pregnant worker is considered pregnancy discrimination. As a result, the policy is more a preventative disparate impact policy rather than discrimination policy, which is where concerns lie. In granting the employee so many protections, the PWD has not provided employers any means of defending itself from pregnancy discrimination claims.
Overall, both approaches are extreme in their own way and in order to properly protect both employers and pregnant employees interests a balance between the two must be found.
[i] 42 USCS 2000e [hereinafter “PDA”]
[ii] PDA, supra note 1.
[iii] See Senator Javits’ statement that "it seems only commonsense, that since only women can become pregnant, discrimination against pregnant people is necessarily discrimination against women." 123 CONG. REC. 29387 (daily ed. Sept. 16, 1977) (statement of Sen. Javits) (emphasis added)
[iv] Stout v Baxter Healthcare Group, 282 F.3d 856 (5th Cir. 2002); See also California Federal Sav. & Loan Ass'n v. Guerra, 479 U.S. 272, 284-86 (1987).
[v] E.g. Young v UPS, 135 S Ct 1338, 1354 (2015)
[vi] E.g. Lang v Star Herald, 107 F.3d 1308 (8th Cir. 1997)
[vii] There are three different ways courts have framed the similarly situated standard: (1) Similarly Situated in Cost, (2) Similarly Situated in Source of Disability, and (3) Similarly Situated in Ability.
[viii] Stout v Baxter Healthcare Group, 282 F.3d 856 (5th Cir. 2002); Lang, 107 F.3d at 1314; See also Byrd v Lakeshore Hosp, 30 F3d 1380 (CA 11, 1994)
[ix] Stout, 282 F.3d at 861; Lang, 107 F.3d at
[x]Young, 135 S Ct at 1341.
[xiii] Id.;See also Spivey v. Beverly Enters. Inc., 196 F.3d 1309 (11th Cir. 1999).
[xiv] PDA, supra note 1, at (k).
[xv] Council Directive 92/85/EEC [hereinafter “PDW”]. The European Union governs using three types of regulations, one being directives. Under the directives, the member states have to implement the directives and its objectives, but may do so according to their own interpretation.
[xvi] Compare PDW, supra note 16, and Council Directive 76/207EEC
[xvii] PDW, supra note 16.
[xviii] 1W.L.R. 1454 (1995).
[xx] Case C-66/96, Handels-og KontorfunktionWremes Forbund I Danmark v. Fwllesforeningen, 1998 E.C.R. 1-07327.
[xxi] Id. at ¶27.
[xxii] Case C-109/00, Tele Danmark A/S v. Handels-og KontorfunktionWremes Forbund I pregnancy and are thus a specific features of that condition. Danmark (HK), 2001 E.C.R. 1-06993.
[xxiii] Id. at ¶35.
[xxiv] Michael Rubenstein, Recent and Current Employment Discrimination Cases in the Court of Justice of the European Union, 15 The Equal Rights R. 57, 61 (2015).
[xxvi] Id. Pregnancy Discrimination: How the US and EU Protect Women