Pregnancy Discrimination - Why it may be the Most Difficult Form of Discrimination to Eradicate from the Workplace
Pregnancy Discrimination – Why it may be the Most Difficult Form of Discrimination to Eradicate from the Workplace.
By: Nina Pirrotti*
And so it is written:
The civil law, as well as nature herself, has always recognized a wide difference in the respective spheres and destinies of man and woman. Man is, or should be, woman's protector and defender. The natural and proper timidity and delicacy which belongs to the female sex evidently unfits it for many of the occupations of civil life . . . The harmony, not to say identity, of interest and views which belong, or should belong, to the family institution is repugnant to the idea of a woman adopting a distinct and independent career from that of her husband.
Any guesses as to the author of this infamous statement? Jerry Falwell? The Old Testament? The Taliban?
Try the Supreme Court of the United States. In an 8-1 decision in 1872, the Supreme Court of the U.S. in Bradwell v. The State of Illinois upheld an Illinois decision which denied women the license to practice law because the “strife” of the bar would surely destroy femininity.
A full century later in 1973, the Supreme Court in Frontiero v. Richardson, a case argued by now Supreme Court Justice Ruth Bader Ginsburg, referred to the Bradwell decision as part of our “long and unfortunate history of sex discrimination.”
This discrimination, the Frontiero court noted, was rationalized by an attitude of “romantic paternalism” which, the Court stated “in practical effect put women not on a pedestal but in a cage.”
The court in Frontiero observed that as heinous as our history of discrimination against black people is, discrimination against women has its own unique dimension because it is cloaked in the guise of “romantic paternalism.”
It is not surprising then that while the Supreme Court found in 1880 that the exclusion of African American men from juries violated the 14th Amendment, that same decision expressed no doubt that a state may constitutionally prevent women from serving on juries. Indeed, many states continued to exclude women from jury service more than 60 years later and those who supported the exclusion of women did so by championing the ostensible need to protect women from “the ugliness and depravity of trials.”
As an attorney who devotes her practice to protecting and defending the rights of employees in the workplace and who heads the Connecticut Employment Lawyer’s Association an organization that has that same focus, I can unequivocally tell you that this insidious concept of “romantic paternalism” is alive and well in one of the last “acceptable” forms of discrimination in the workplace – pregnancy discrimination and its most recently acknowledged counterpart, family responsibility discrimination.
Title VII makes it “an unlawful employment practice for an employer to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's ... sex....” Congress amended Title VII in 1978 when it enacted the Pregnancy Discrimination Act or PDA. The PDA explicitly extended Title VII’s protection to pregnant women: It provides that “[w]omen affected by pregnancy, childbirth or related medical conditions shall be treated the same for all employment-related purposes ... as other persons not so affected but similar in their ability or inability to work.”
With this protection against pregnancy discrimination in place for more than three decades, why is pregnancy discrimination in the workplace so stubbornly difficult to eradicate? Returning to the court’s analysis in Frontiero v. Richardson, a comparison to other forms of discrimination in the workplace is illuminating.
It has become increasingly less common for plaintiff’s employment lawyers to find clients who have direct evidence of age or race discrimination in their workplace. Only employers who have been living under a rock for the last decade or so (and, unfortunately, a few of those still exist) will tell an older employee: I am getting rid of you because your best days are behind you” or a black employee: I’m giving that promotion to a white person instead of you because I have no confidence in black people.” Even if they are ignorant enough to think it, they are at least usually smart enough not to say it.
Yet time and again, there are cases in which pregnant women and women with young children are either outright terminated or systematically de-selected from promotions or career building responsibilities that would lead to promotions and the employer has no qualms about informing them that the reason for this adverse employment action is their motherhood or impending motherhood.
How do they justify it? Romantic paternalism – the “cage” in the guise of the “pedestal”. Today, employers are “protecting” pregnant women and new mothers out of advancing in the workplace using the same philosophy that the Bradwell Supreme Court adopted to deny them law licenses more than a century ago.
“I gave that promotion to Jack because it involves a lot of late hours and I figured with your pregnancy (or with two little ones at home) that would be too hard on you.” “We needed someone we could count on and even though you say you plan on coming back after maternity leave, we know better - once you hold that baby in your arms you are never going to want to come back.” “I assigned this career building business trip to your colleague because I figured you would not want to travel in your pregnant state.”
Now mothers to be or new mothers may very well decide that they do not want to work long hours or they would prefer not to travel extensively, especially during pregnancy. But shouldn’t the choice be theirs?
I think what makes pregnancy discrimination particularly difficult to eradicate is that on the surface it doesn’t appear to be discrimination at all. Where racism or homophobism for example, are unequivocally born of hate, pregnancy or family responsibility discrimination is seemingly the product of the best intentions.
Imagine a workplace where the “N” word is used to address black employees or the “F” word is used to address to gay employees. Thank goodness such scenarios are becoming rarer but when they do occur everybody can immediately spot the degradation of blacks or gays. It’s a no brainer.
But diminishing the sphere of a woman’s duties and responsibilities out of concern for her pregnant state or passing her over for a promotion with long hours out of deference to her responsibilities as a new mother? That is the equivalent today of what “honey” and “sweetheart” were in the workplace a couple of decades ago. You actually have to think about it to spot the degradation. Indeed, a woman who balks at this discriminatory conduct may actually be met with a bewildered and offended reaction on the part of the employer.
But balk we must – loud and clear. Perhaps if we stand on top of the cage and roar a few times when we do it, employers will finally get that pregnant or not, mothers of young children or not, romantic paternalism is unwelcome in the workplace and, should it make an appearance nonetheless, we’re not the ones who are going to need protecting and defending.
*Nina Pirrotti is the President of the Connecticut Employment Lawyers’ Association. She spoke on this topic on June 7, 2010 as part of a panel entitled Women and Work, sponsored by the Connecticut Women’s Education and Legal Fund (“CWEALF”).
posted by Tom Meiklejohn | Oct 27, 2010 11:51 AM