Of all the pregnancy discrimination cases that attorney Jayme Walker has studied or litigated, the two that she finds most galling involved an OB-GYN and an employee at a Bay Area company that makes products designed to help women assess the health of the fetus.
“These make for very strong cases,” said Walker, who practices with Gwilliam, Ivary, Chiosso, Cavalli & Brewer. “The hypocrisy of denying pregnant women the support they are due under the law, by companies that promote women and children’s health, it’s just so contemptible.” Walker, who is a partner at the 44-year-old Oakland law firm, specializes in catastrophic personal injury, product liability, wrongful termination, employment discrimination, police misconduct and whistleblower retaliation.
Several high-profile pregnancy discrimination lawsuits have involved a Netflix manager, a Merck pharmaceutical sales rep, a Parkette magazine editor and even an associate at the California law firm of Morrison & Foerster.
Hypocritical, illegal, sexist, retrograde, contemptible — none of this seems to have curtailed this deeply entrenched, and very American, form of discrimination. According to the Equal Employment Opportunity Commission, pregnancy discrimination cases have been ticking upward for the past 20 years and have plateaued at an all-time high. Walker hasn’t noticed, either, any reduction in pregnancy discrimination cases in her 12 years of practicing law in the Bay Area.
“I take a lot of these cases because this is a special interest of mine,” she said. “And I wish I could tell you that there are fewer cases now. But cases have been very consistent over the years.”
This steady state reflects long-standing biases about women in the workforce, women and child-rearing responsibilities and women’s “place” in society.
“Across all industries, there’s a perception that mothers aren’t committed to their jobs, that pregnant women will cost the company money, that they will no longer be dependable,” Walker said. “It’s also wrapped up in the larger societal issue of caregiver discrimination in general. There is currently pending legislation in California that would offer protections to caregivers. Caring for others — paid or unpaid — is simply not highly valued. And that is the case whether it is caring for a newborn, or a growing child, or an aging parent.”
Laws protecting pregnant women
Nevertheless, the legal protections are there, and have been since 1974 when Congress amended the Civil Rights Act of 1964 by passing Title VII, otherwise known as the Pregnancy Discrimination Act. Title VII prohibits all forms of sex discrimination, including pregnancy discrimination.
California has its own protections for pregnant women, including the Fair Employment and Housing Act (FEHA) and the Pregnancy Disability Leave Law, and the California Family Rights Act (CFRA). It makes no difference whether the pregnancy is current, pending or post-partum. It also pertains to discrimination based on infertility treatment, birth control or other conditions related to the pregnancy, such as pregnancy-related health issues, breastfeeding or pumping.
Pregnant workers have additional protections under California’s FEHA, which prohibits discrimination against an applicant or employee based on a disability, including ones that develop during pregnancy, like gestational diabetes.
“Under federal law, pregnancy is not considered a disability, however, it is under California’s FEHA (Fair Employment Housing Act),” Walker said. “In cases where there’s an impairment related to the pregnancy; the law says the worker must be provided with reasonable accommodations. Reasonable accommodations can be a temporary transfer, time off for medical appointments or alterations to the employee’s work environment.”
As with other forms of sex discrimination, pregnancy discrimination encompasses a range of actions such as firing a pregnant worker, asking about pregnancy status during a job interview or any recurring or severe negative treatment.
“There’s discrimination, and there’s harassment. Harassment can be asking questions like ‘How’s your vagina’ or remarks about your breast milk,” Walker said. “Discrimination would be things like being demoted when you are out on leave, or when you announce your pregnancy. Or you were up for a promotion before you got pregnant and then got passed over once the employer knew of the pregnancy. I have seen cases where the company says there are layoffs, and the pregnant employee is the only one being laid off. What is required is that when you return to work following a leave of absence due to pregnancy, you are returned to your former position or an equivalent position.”
“It all boils down to how you were treated compared to employees who aren’t pregnant,” Walker said.
Motherhood added perspective
Walker has always bristled at the inequity of pregnancy discrimination, as she does at instances of gender, age, and sex discrimination. But her perspective deepened — considerably — when she became a mother herself.
“There is a huge difference in the way I thought about it before and after I got pregnant,” she said. “So much caregiving falls on women to begin with, and there is little societal support for working mothers. To be undergoing the monumental shift in identity that is inherent in becoming a mother, and then to suffer discrimination in your workplace during this time when you most need support is, frankly, morally reprehensible.
“I mean, we’re talking about the perpetuation of the species here,” she continued. “It’s hard to understand that this is devalued. Mothers and their importance in the well-being and development of children should be highly valued to a point that this sort of discrimination should be a thing of the past.”
But if that value isn’t forthcoming on its own, for the simple reason that it’s just and equitable social good, then the law is at least a partial remedy in balancing the scale. “Antidiscrimination laws can and should be used to hold workplaces accountable for this conduct,” Walker said. “Mothers, especially, shouldn’t be afraid to use them.”