For years we have fought for gender equality on all levels of employment.  From equal pay to equal opportunity in hiring, there are many fronts on which we seek gender equality. However, one experience is unlikely to be available to all genders, at least in this lifetime: pregnancy.

This article provides a comprehensive look at both the history and current state of the law in California, including the Pregnancy Discrimination Act, the Family Medical Leave Act and the California Family Rights Act.

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Employment Law Turns Up the Heat on Pregnancy Discrimination with Huge Settlements

Recently, Wal-Mart agreed to settle a class-action lawsuit brought by a group of employees who accused the retail giant of excluding them from its disability accommodation procedures.

Accommodation is required by law for employees with special needs; for example, a variable height desk for an employee in a wheelchair, or permission to work from home for an employee struggling with anxiety attacks.

In this case, the group of employees were pregnant women, and the settlement amount was reportedly in excess of $14 million.

Beginning with the decision in Young v. United Parcel Service in 2015, in which the Supreme Court ruled that pregnant women must be offered the same accommodations as other workers doing similar jobs, the legal landscape has shifted significantly to protect pregnant women and their families from discriminatory employment practices.

Evidence of this broadened interpretation of laws like the Pregnancy Discrimination Act (PDA) can be seen in the eyewatering $185 million verdict for the plaintiff in  Juarez vs. AutoZone, where the auto parts retailer was found to have actively demoted Rosario Juarez, then found a pretext to dismiss her because of her pregnancy.

The case was settled before appeal, and the amount of the verdict may well have been decreased by the judge, but the trend is obvious: employers are on notice that pregnancy discrimination will cost them big time.

Business attitudes like Walmart’s are not a new development. During the 20th century, pregnancy was considered a serious reason to avoid hiring women. In fact, there was a societal idea that women were less able employees because they were more likely to become pregnant and therefore disrupt the workplace.

It’s been a long road between the 20th century’s concept of the woman or female worker and the same concept today. Over fifty years, the US transitioned from having no protections for pregnancy or families to instituting the Pregnancy Discrimination Act and the Family Medical Leave Act.

To trace this path, it’s necessary to start at the beginning, with the Civil Rights Act.

Civil Rights Act

The Civil Rights Act of 1964 was primarily intended to mandate equal rights for non-white Americans. During its writing, there was significant pushback from conservative members of Congress. These congressional officials did not think the Act was necessary, and in many cases were actively biased against non-white Americans. During the writing of and deliberation over the Civil Rights Act, there were many attempts to sabotage it.

It is commonly argued by historians and legal scholars that Title VII was one of those attempts. This is the section that includes gender as a protected class. At the time, women’s rights activists were not actively campaigning for the inclusion of gender in the Act. The consensus among women activists was that it would be better to allow some discrimination in order to permit laws that protected women.

The Civil Rights Act did not allow that. The language involved explicitly called for complete equality. The conservative lawmakers who inserted Title VII thought that it would make the Act less likely to pass. Instead, support for racial equality was so strong that gender equality was given legal protection as a side-effect.

GE Company vs. Gilbert

The wide-reaching effects of the Civil Rights Acts took years to be fully felt. Over the course of the decade after the Civil Rights Act, many lawsuits were filed over the precise implications of the law. One of the most important of these was the case GE Company vs. Gilbert.

This lawsuit was pressed by employees of General Electric. At the time, multiple employees of GE had been pregnant during their time at the company. These employees applied for leave due under the sickness and accident benefits provision GE offered. However, GE denied them leave because pregnancy was not one of their covered conditions. The class action lawsuit specifically challenged this as gender discrimination and argued that the plan GE offered should consider pregnancy a short-term disability.

The ruling of GE Company vs. Gilbert was heavily influenced by a prior case from California, Geduldig vs. Aiello (1974). In that case, the US Supreme Court had found that providing pregnancy protections would in fact constitute unequal treatment. That ruling was used as a precedent in the General Electric class action suit.

GE Company vs. Gilbert made its way to the Supreme Court in 1976. Here, the justices decided that Title VII did not specifically protect pregnancy, as the Act only requested equal treatment. The specific wording considered in the opinion was that “it is an unlawful employment practice for an employer to discriminate against any individual with respect to compensation because of that individual’s sex.” Pregnancy was not covered by the plan, regardless of gender; therefore the plan did not discriminate based on sex.

This ruling was controversial. After the Civil Rights Act was passed, women’s activists had come to agree with Title VII. GE Company vs. Gilbert was seen as actively ignoring a significant part of women’s lives. The argument was that pregnancy should be treated similarly to any other illness or short-term disability. Treating pregnancy differently from other medical issues was seen as inherently discriminating against women.

Those that agreed with the ruling largely argued that including pregnancy as a protected start might impose prohibitive costs on employers. However, compared to the arguments in favor of protecting pregnant women, this was not seen as persuasive. This was the atmosphere that led to the passing of the Pregnancy Discrimination Act in 1978.

Pregnancy Discrimination Act

The Pregnancy Discrimination Act (PDA) is remarkably simple. It is a short amendment to the Civil Rights Act. Section 701-k of the  Civil Rights Act, which constitutes part of the PDA, states that pregnancy and childbirth are explicitly to be treated as other short-term disabilities. This includes mandating coverage under any fringe benefits packages offered by the company. Discriminating against a person for a pregnancy is therefore illegal and punishable by law.

However, the PDA was quickly critiqued. One major problem with the PDA is that it only covers medical issues faced by women directly related to pregnancy or childbirth. However, it does not cover any type of protection after the child is born. Women who needed or wanted to take additional, non-medical time off to care for a newborn, for example, were not protected. The consensus was that any ensuing life complications, such as taking care of a sick child, were not gendered problems and therefore not connected to the Civil Rights Act.

Another problem that has been considered more recently is that of specific language. The PDA specifies women who become pregnant. That ignores transgender or intersex people. There is discussion of revising the language of the PDA in order to be more inclusive.

Finally, and perhaps most importantly, the PDA only protects against discrimination based on actual pregnancy. It does not clarify whether a person with the potential for pregnancy is a protected class. This leaves people with uteri who are of childbearing age vulnerable to discrimination that’s harder to track.

These problems and more led to campaigns for further protections. By 1984, the Family Medical Leave Act was first put before Congress. However, it would be years before the bill would be signed into law.

The Family Medical Leave Act

The first iteration of the Family Medical Leave Act (FMLA) was called the Family Employment Security Act (FESA). It called for 26 weeks of unpaid leave for both parents in the event of a new child, a disability, or a sick child. At the time, activists hoped for paid leave to be included in the future. However, it was left out of FESA to make the bill more likely to pass.

FESA did not make it to the formal introduction stage in Congress. Neither did its first revisions, the Parental and Disability Leave Act or the Parental and Medical Leave Act. Over the course of debates regarding the bill, those family members one could take leave to care for were expanded to include parents and siblings. However, the requirements for eligibility for taking leave were tightened, and the amount of leave was shortened.

The bill finally became the FMLA in 1986, and passed through the House and Senate in 1990. George Bush Senior vetoed it twice, in 1990 and 1992. Bush Senior’s opinion was that family leave was a good idea, but it should be voluntary on the part of the business or incentivized by tax breaks. However, he knew this was not a popular choice with voters, and so did not publicize his decision.  It wasn’t until 1993 that the FMLA was officially signed into law; Bill Clinton made it the first act of his presidency.

The FMLA as we know it today requires 12 unpaid weeks of leave for child and family care in the course of a year. It applies to businesses with 50 or more employees, and only to employees who have worked more than 1250 hours in the past year. This is the minimum required throughout the US. However, states and municipalities have the ability to increase the amount of available leave.

The California Family Rights Act and Paid Family Leave Program

Prior to the passage of the FMLA, California created its own bill, the California Family Rights Act (CFRA) of 1991. It is very similar to the FMLA. For example, both programs provide the potential for leave fathers, to same-sex couples, and to families may not be able to have biological children. One of the primary differences between the CFRA and the FMLA is how they cover pregnancy.

The CFRA does not cover pregnancy – instead workers can take an unpaid  Pregnancy Disability Leave of up to 16 weeks, and then stack the 12 unpaid weeks CFRA offers on top. This applies to any company with five or more employees, which significantly increases the number of workers potentially covered. This CFRA also covers leave taken to care for registered domestic partners, which the FMLA does not cover.

California is also one of four states that has implemented paid leave programs for most workers. This plan is called the Paid Family Leave program, or PFL. It is funded through a state disability insurance income tax. Workers are guaranteed 60-70% of wages, depending on their initial rate of pay, for up to six weeks of leave.

The PFL program was put into place in 2002, after a long history of California’s State Disability Tax succeeding in its goals of helping workers. PFL is available to anyone, regardless of gender. Leaves taken on behalf of a child, whether biological or adopted, are considered as part of PFL. Overall, California has some of the broadest protections for families welcoming children in the entire country.

Pregnancy Discrimination Today

Young v. United Parcel Service, decided by the Supreme Court in 2015, was a landmark case involving the Pregnancy Discrimination Act. Peggy Young sued UPS for violating the PDA by refusing to give her light duty when she became pregnant. UPS gave light duty to others on short-term disability, so Young argued that this was discrimination under the PDA since she was not provided the same light duty as other workers in a similar situation.

Ultimately, the Supreme Court agreed with Young. Their decision was that Congress clearly intended the PDA to prevent discriminatory behavior related to pregnancy, and that accommodations offered to similarly situated workers must be made to pregnant women as well.

In a similar case with record penalties, Juarez vs. AutoZone, the verdict penalized AutoZone for actively demoting a pregnant Los Angeles manager. Shortly after she filed a pregnancy discrimination claim for her demotion, Rosario Juarez was then fired on an allegedly spurious pretext. The jury awarded Juarez more than $185 million. This was not the first case where AutoZone has been hit with damages for gender-related discrimination.

There are more protections in place today for pregnant women and their families than ever before. However, there is still room for improvement. The US is the only developed nation that doesn’t mandate paid family leave on a federal level. That leaves the country as a whole with a patchwork of coverage, and plenty of ways to slip through the cracks.

Protect Your Rights by Knowing Your Rights as an Employee

All in all, it’s important to understand your rights. Every state is different. Having a firm grasp on what you’re entitled to as an employed person is key to accessing your rights in a tough situation. Employers may not be aware of what the law requires them to provide. Many workers around the country, and almost every employee in California, are covered by the FMLA or the CFRA. Knowing what protections these laws provide is the simplest way to make use of family leave or fight back if your employer bars your access.

 

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