Women and the Workplace: Pregnancy Discrimination in the United States

I. Abstract
With an increasing number of women entering the workforce, pregnancy discrimination has become a pervasive problem. This paper, which focuses on the United States (US), thus considers the underlying reasons and impacts of this biasness from the perspectives of both employee and employer. It then follows with a study on the legal protections in place to prevent such behaviour. And lastly, it will analyse various ethical issues involved in this unequal treatment of pregnant employees in the workplace using ethical frameworks such as Utilitarianism theory, Kantian Ethics and John Rawls’ Justice as Fairness. These ethical frameworks will help highlight how pregnancy discrimination is morally wrong and in addition, more has to be done to further curb this prejudice.

II. Introduction
Modern society may seem more understanding of our needs and reflective of a shift towards family-work balance, but the increase in the number of cases of pregnancy discrimination in the US tells a different, appalling, tale. According to the United States Equal Employment Opportunity Commission, the number of pregnancy discrimination lawsuits increased by about a third over the past decade, from 3,977 in 1997 to 5,797 in 2011. Coupled with the increasing number of women entering in the workforce today at a childbearing age, these figures call for serious concern. Pregnancy discrimination is defined as the unfavourable treatment of a woman because of “pregnancy, childbirth, or a medical condition related to pregnancy or childbirth.”

The conflict between pregnant women and the workplace has intensified as more women enter the workforce and take on roles which were previously predominantly held by men. It is estimated that three out of four women are likely, at some point, to be expecting while working and a substantial number of them may already be expecting while applying for jobs. The physical and mental incapacity of these expecting mothers has been a key point of contention. Despite the anti-pregnancy discrimination laws put in place, false beliefs and expectations of expecting women’s inability to work while pregnant have plagued corporate America for decades. This has resulted in prejudices beyond the gender discrimination that women already face.

III. The Employee Perspective
When Angela Anderson learnt about her promotion, an opportunity sought after by many, she was so excited she quickly shared with her boss the additional good news of her recent pregnancy. She never expected that would be mistake; his face changed upon hearing it, and he withdrew the promotion as he felt that he could not rely on a pregnant employee. While this seems like a case of blatant discrimination against pregnant women and absolutely unfair, in reality this is hardly an isolated case. Pregnancy discrimination can result in financial loss, like in Angela’s case, workplace harassment and increased stress. With a change in job scope or time off on maternity leave, co-workers may have to shoulder heavier duties. Unhappiness may follow, and result in verbal harassment. Also, the lack of faith that pregnant employees can be as serious and committed to their work as before often leads to loss of advancement opportunities or even the job itself. In general, even subordinates have a more negative mind-set of pregnant mangers compared to a one who is not pregnant. As if handling the pregnancy and work isn’t stressful enough, pregnant employees have to deal with all these additional stress. The financial insecurity and humiliation faced hence leads to huge distress and uneasiness, and at such a critical phase of a woman’s life.

IV. The Employer Perspective
Despite no open acknowledgement about employment decisions, pregnancy inevitably affects a woman’s chances of getting a job. While there are laws in place, such as prohibiting private questions about pregnancy, to regulate the hiring process, it does nothing stop employers from making personal judgement calls once the pregnancy becomes visible. In fact, a study in the US showed that given identical credentials and interview performance of two individuals, the evidently pregnant applicant would be rated lower compared to a non-pregnant applicant.

The negative mind-set of employers on pregnant employees plays an important role in causing discrimination. Women’s performance ratings were seen to decline after being pregnant, from “superb” to “terrible” as shared by one victim of pregnancy discrimination. This is because they are perceived as “overly emotional, often irrational, physically limited, and less than committed to their jobs” as compared to their non-pregnant woman counterparts and are hence “less valuable and dependable.” There is also the problem of additional workload for remaining staff or the potential need to hire temporary staff to tide over the maternity leave period. To compound the issue, employers suffer uncertainty as to when the employee will return to work, or worse, the employee leaves for good after their maternity leave period. In fact, a study done shows that only 60% of women go back to work within two years of their maternity leave. It is hence unavoidable that employers, being cost sensitive, worry that all the extra cost incurred will ultimately become a meaningless loss if their pregnant employees do not return to work.

This is especially dreadful for small and medium-sized enterprises (SME) with a very small staff size. The absence of one staff has a much greater impact for them. For those already operating on thin ice, it’s a financial nightmare. With the economic downturn, this thus results in the avoidance of pregnant employees, or simply women for some.

Lastly, unlike in Europe where the cost of maternity leave is jointly financed by both the employee, employer and government subsidies through a social insurance plan, in the US the burden of this cost is carried primarily by the employer. This creates more resistance in the hiring of pregnant employees in the US, and consequently the increasing number of cases of pregnancy discrimination.

V. The Legal Perspective
With the increasing number of cases of pregnancy discrimination in the US, the Civil Rights Act of 1964 (“Title VII”) was amended in 1978 to add in the Pregnancy Discrimination Act (PDA). The PDA was enacted to ban any sex discrimination on the basis of pregnancy, childbirth or related medical condition. It states that pregnant women should not be treated any differently from their employees of the same qualifications and abilities.

One famous example was the Tylo v. Superior Court (Spelling Entertainment Group, Inc.) (1997) case where Actress Hunter Tylo was fired by Spelling Entertainment Inc. because she was pregnant. The defendants argued that they had the rights to terminate the contract on grounds that with the pregnancy will affect her performance. The court, however ruled in favour of Tylo and she was awarded $4,000,000 in emotional damages and $894,600 for economic loss on the basis that she that her was still able to perform her role sufficiently well.

Despite this successful case, the courts often favour employers. The bottom-line is the employer’s rationale for their action. Should they be able to prove that the same action was to be taken immaterial of the pregnancy, it is not illegal. Furthermore, because of the legal fees involved, despite the numerous pregnancy discrimination cases published yearly, many cases have gone undetected, especially among low-wage workers.

The Family Medical Leave Act (FMLA) is another legal protection against pregnancy discrimination. Under FMLA, eligible employees are entitled up to 12 weeks of unpaid, job-protected leave due to reasons such as the inability to work due to pregnancy, labour or childcare after birth. By legalizing reasonable unpaid leave for family or medical reasons, it aimed to promote the family-work life balance and gender equality in the workplace.

Nevertheless, these laws work under the assumption that every pregnant woman will have the consistent ability to perform tasks like before. The PDA promotes equality in the workplace for these women based on merits, but fails to consider many cases where the temporary physical inabilities due to pregnancy hinder their full capacity to perform their roles in the same way. While the Americans with Disabilities Act ensures the workplace provides reasonable accommodation for any disabilities caused by pregnancy, most effects of pregnancy are minimal and hardly fall into its definition of disabilities. Laws are therefore needed to assist those with partial inabilities due to pregnancy and to defend their right to continue working. This can be done by making reasonable adjustments to accommodate their temporary physical limitations. This will help further govern the rights and opportunities of pregnant women in the workplace.

VI. The Ethical Dilemma
The management will inescapably find themselves caught in this ethical dilemma when dealing with pregnant employees – whether to act in the interest of shareholders or employees. From an economic standpoint, employers are capitalists at heart, and seek to maximise profits by reducing operating cost. This is in line with their responsibility to serve the interests of shareholders by maximizing their returns. However, this often conflicts with the interests of employees. An unjust loss of promotion opportunity or being laid off affects their source of income and their means of supporting their family. For the purpose of this discussion, we will focus on the example where an employee’s dismissal was influenced by the fact that she’s pregnant.

The economic standpoint is in agreement with Milton Friedman’s theory which states that based on “economic theory and a conception of mortality based on liberty, the social responsibility of business is profit maximization.” He believes that the allocation of limited resources to society’s needs is best done by the market itself. A competitive market results to value maximization and economic efficiency. It is also coherent with Adam Smith’s concept that when everyone acts in pursuit of their own interest, the society will be overall better off than what each intended it to be. Therefore it is arguable that the employer should deny the pregnant employee the job in the interest of the company’s profit maximization, its shareholders’ good, and in that way, overall society too.

To further examine this prejudice against pregnant employees, Utilitarianism theory, based on consequences and outcomes, will be used. The stakeholders affected in this example will be the employer, employee, employee’s family, company (in terms of reputation) and other employees. The layoff reduces operational cost and inconvenience for the employer as he will not have to cope with all the uncertainty in duration of the frequent and ad hoc leaves, and not forgetting additional medical benefits. However, it might leave him feeling guilty if this bias is against his personal values. This creates financial and emotional woes for the pregnant employee, and thereby affecting their families too as it concerns their livelihood. Also, it might result in apprehension towards pregnancy planning among other female employees and cause low morale and loyalty towards the company as they face the possibility of a dismissal anytime.

The company’s reputation will be affected too should the case go to court. Conversely, keeping the employee is problematic for the employer though it leaves the employee happy. It will also affect neither the other employees’ morale nor the company’s reputation. Since utility seeks to maximize overall happiness, the employer can consider the alternative of working with the employee in coming up with a strategy to accommodate her temporary limitations such as to redefine the expectations he has of her and revise her job scope to tap on her existing skills. With this, it not only puts the employer is put in a better position with reduced cost and inconvenience, the employee is given the chance to still contribute albeit in a different aspect. Thus, according to utilitarian, this alternative is morally right and should be chosen since it leads to the greatest overall happiness.

Moving on, this issue can be compared with Kant’s Principle of Universality and Humanity, which is “to act in a way that is consistent with what you would want as a universal law and at the same time, treat people as ends, and not a means only.” Thus, going back to the same example of the pregnant employee being dismissed based on the fact that she is pregnant and for economic reasons such as to reduce operating cost or inconvenience for the company, instead of survival reason such as the potential of the company going bankrupt, it clearly violates both the Principle of Universality and Humanity. This is because everyone would want to live in a world without discrimination and to be treated equally regardless of gender or pregnancy and that the employee in this case is seen merely as a means to achieve the company’s end. This view of the act being unethical is in line with the Utilitarianism theory.

John Rawls’ Justice as Fairness provides another point of contention. Based on Rawls’ theory which states that the decisions of the allocation of social goods should be made under a ‘veil of ignorance’ to ensure fairness, no individual will act in a way that is unfair to another party. Hence, despite expecting a baby, the employee should not be treated impartially. And by applying the Difference Principle which states that with the total welfare of the society held constant, the most disadvantaged party should receive the largest benefit, additional help should thus be given to the pregnant woman who is physically limited due to the pregnancy, instead of firing her. As mentioned above, the help can come in the form of the modification of her job scope or a redefinition of expectations. This is further supported by the Fair Equality of Opportunity principle which asserts that everyone should have the chance to realize their potential. An unjust dismissal also clearly violates the Principle of Equal Liberty which argues that everyone should have equal rights. Hence, evidently, Rawls’ Justice as Fairness sees this dismissal as unprincipled.

VII. Conclusion
Ethical issues will unavoidably arise when it comes to the different treatments and opportunities received by pregnant employees in the workplace. Milton Friedman’s and Adam Smith’s concepts justify this discrimination as they assert that businesses should focus on the pursuit of their personal interest which should be profit maximization. Yet, the arguments raised using the other ethical frameworks far outweighs this focus on profits. Hence, pregnancy discrimination is unethical and immoral.

The reasonable accommodation of pregnant employees to help them work with their limitations to still be able to be contribute to the company is another key point of this paper. This is supported by the Utilitarianism theory as it results in maximum aggregate happiness and John Rawls’ Justice as Fairness which assert that everyone should have the opportunity to realise their potential. As mentioned above, there should thus be additional laws in place to promote this accommodation. While the law can help influence our mentalities to make more ethical decisions through the enactment of statutes and punishments, it does not eliminate this discrimination entirely due to its deep-rooted negative stereotypes. With women making up about 50% of the current workforce, and spending a large part of their childbearing years on their careers, such issues with pregnancy and work place would be of increasing significance in the years to come. Instead of having only the laws in place to promote anti-pregnancy discrimination, the government or unions can promote this issue more actively through campaigns or workshops to create a greater awareness and understanding among both employers and employees. This way, corporate America can work towards having more lawful and ethical work practices with regards to pregnancy in the workplace.

References:

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