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Pregnancy Discrimination: Another Battleground in the War on Women

Ariela Migdal,
ACLU Women's Rights Project
Sarah Lipton-Lubet,
ACLU Washington Legislative Office
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March 9, 2012

Access to birth control, forced ultrasounds – lately there’s been a lot of news about efforts to roll women’s rights back by decades. Less attention has been paid to the way in which pregnant women and nursing mothers have been stuck in the 1970s, or worse, when it comes to workplace equality.

Yesterday, the ACLU submitted comments to the Equal Employment Opportunity Commission – the body that enforces federal civil rights employment law – explaining how courts have been ignoring the basic premise of the Pregnancy Discrimination Act, and leaving women in the lurch.

In 1978, Congress passed the Pregnancy Discrimination Act to do something seemingly straightforward: ensure that pregnant workers are treated equally and that they have the full protections of the civil rights laws that guarantee equal treatment in the workplace. And yet, some thirty-odd years later, pregnant women and nursing mothers are still being pushed out of their jobs by employers that deny them the same routine accommodations that other workers often receive for minor injuries, or for conditions that are covered by the Americans with Disabilities Act. Consider these examples:

• This week, the ACLU filed an amicus brief supporting a woman who was forced out on unpaid leave while pregnant because her doctor recommended she not lift over 20 pounds, even though her employer, UPS, admitted that it provided “light duty” or similar alternative assignments for other workers who were temporarily prevented from doing their regular jobs, either because they were injured on the job, lost their drivers’ licenses, or had a disability covered by the Americans with Disabilities Act.

• The co-founder of Staples, another large chain, recently made headlines by complaining about the Affordable Care Act’s requirement that employers set up private places for employees who need to use a breast pump – even though many employers do this already, and doing so can help keep new parents on the job, as demonstrated by a recent case about a Houston women who was fired for asking for a private place to pump breastmilk. As we’ve written about in the past, more than one woman has been fired, unlawfully, for asserting her right to pump breast milk at work.

• The Supreme Court is currently considering the validity of a provision of the Family and Medical Leave Act that allows employees to take up to 12 weeks off per year to care for their own serious medical condition, including pregnancy. The ACLU joined a brief arguing that this provision – which allows men and women to take self-care leave – was aimed at stopping employers from discriminating against women based on the assumption that they, and only they, will need to take self-care leave from work.

As these examples demonstrate, the maternal wall still looms high for women workers. That’s why we’re glad the EEOC held a public meeting last month to address the discrimination faced by pregnant workers and workers with caregiving responsibilities. It’s an important first step toward ensuring that when it comes to women’s rights, we’ve caught up to the 21st century.

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