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Pregnancy discrimination law, and the failure of the United States of America to have a policy providing paid maternity leave to mothers (and fathers) is an international shame.
America, my friends, is one of the cruelest countries on the planet to expecting parents.
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Right now, there is no mandatory paid leave for parents, and while Connecticut provides stronger pregnancy discrimination protections than the rest of the country, our treatment of mothers and babies is awful.
Take, for instance, this lack of compassion and reason in a 7th Circuit court decision: “Employers can treat pregnant women as badly as they treat similarly affected but nonpregnant employees.” (See Troupe v. May Dep’t Stores, Co., 20 F.3d 734, 738 (7th Cir. 1994).
Anyone with a mother should recoil at this precedent and mourn that it is only 20 years old, and not 200 years old. Recent law is not much better.
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Understanding this abject cruelty, the federal Equal Employment Opportunities Commission released in July 2014 an Enforcement Guidance. This document, though, is seen by the Supreme Court of the United States as prepared for litigation – specifically the hotly contested Young v. United Parcel Service – and thus does not have the full force of law.
SCOTUS recently decided Young, docket no. 12-1226. Young sued UPS for failing to provide her with an alternative work placement because her pregnancy prevented her from doing heavy lifting.
The Supremes overturned the Fourth Circuit in Young v. UPS, 707 F.3d 437 (4th Cir. 2013), which justified treating a pregnant woman like any other worker, because, in short, pregnancy is not a disability covered by the Americans With Disabilities Act.
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Yet the Supremes split the baby (no pun intended) in Young, and did not give the EEOC its full due. The status of pregnancy discrimination law is still in flux, leaving women suffering from discrimination a hard row to hoe.
The EEOC’s Enforcement Guidance found that pregnancy discrimination hits women of color hardest:
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“In 2008, a study by the National Partnership for Women & Families found that pregnancy discrimination complaints have risen at a faster rate than the steady influx of women into the workplace.
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“This suggests that pregnant workers continue to face inequality in the workplace. Moreover, the study found that much of the increase in these complaints has been fueled by an increase in charges filed by women of color.
“Specifically, pregnancy discrimination claims filed by women of color increased by 76% from FY 1996 to FY 2005, while pregnancy discrimination claims overall increased 25% during the same time period.” (Internal footnotes omitted.)
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Title VII, the part known as the Pregnancy Discrimination Act, 42 U.S.C. §2000e, et seq. (“PDA”) controls on the national level, but is largely toothless.1
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The Connecticut Fair Employment Practices Act (“CFEPA”), Connecticut General Statutes §46a-60(7), protects the right to workplace accommodations because of pregnancy. Connecticut law governing pregnancy discrimination is stronger than federal law. C.G.S. §46a-60(7) outlines the following is a discriminatory practice in violation of state law
The Enforcement Guidance reads closer to Connecticut law, and provides a stronger beacon for pregnancy discrimination than the current conflict of law in the federal court system. But it is not federal law.
Section IV, Best Practices, of the Enforcement Guidance states “Title VII does not relieve employers of their obligations under state or local laws except where such laws require or permit an act that would violate Title VII. Therefore, employers must comply with state or local provisions regarding pregnant workers unless those provisions require or permit discrimination based on pregnancy, childbirth or related-medical conditions.”
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The Enforcement Guidance, in the overview, states “1) An employer may not discriminate against an employee on the basis of pregnancy, childbirth, or related medical conditions; and 2) Women affected by pregnancy, childbirth or related medical conditions must be treated the same as other person not so affected by similar in their ability or inability to work.”
According to the Enforcement Guidance, Section I(C)(1)(c): “The Commission rejects the position that the PDA does not require an employer to provide light duty for a pregnant worker if the employer has a policy or practice limiting light duty to workers injured on the job and/or to employees with disabilities under the ADA.”
Anyone familiar with comparative anti-discrimination law should not be surprised with America’s policy preference of corporate economic growth over citizen quality-of-life issues. According to a Pew Research Center study dated December 12, 2013, among 38 western industrialized nations in the OECD (Organisation for Economic Co-operation and Development), the United States is the only country not to mandate paid and protected leave for pregnant women.
The Pew Research Center acknowledged a handful of American states require and some employers voluntarily provide such leave. That smattering of policies does not affect the United States’ ranking as an outlier among countries who seek to protect pregnant women.
Estonia, at the top of the chart, provides 108 paid weeks of leave for a pregnant mother, and an additional 72 weeks of protected leave, meaning she cannot lose her job at all. Our neighbor to the north, Canada, provides 17 weeks of paid leave and up to 52 weeks of unpaid leave.
Here in the United States, instead of discussing ways in which employers and employees can have symbiotic relationships to increase productivity and protect families simultaneously, we find our legal practitioners mired in disputes over whether employers have the fundamental right to treat a pregnant woman as badly as they treat anyone else.
Other sources confirm the United States’ paltry protections for pregnant women. “The U.S. has one of the poorest support systems for pregnant women and new mothers in the world.” See Angie Mohr, “Maternity Leave Basics: Canada Vs. The United States.”
Article 4 of the Maternity Protection Convention (“MPC”) states that “On production of a medical certificate or other appropriate certification, as determined by national law and practice, stating the presumed date of childbirth, a woman to whom this Convention applies shall be entitled to a period of maternity leave of not less than 14 weeks.”
Article 8 of the MPC states:
“It shall be unlawful for an employer to terminate the employment of a woman during her pregnancy or absence on leave referred to in Articles 4 or 5 or during a period following her return to work to be prescribed by national laws or regulations, except on grounds unrelated to the pregnancy or birth of the child and its consequences or nursing.
“The burden of proving that the reasons for dismissal are unrelated to pregnancy or childbirth and its consequences or nursing shall rest on the employer.”
Of the 29 nations to ratify the MPC, the United States is not one. If America is judged by how it treats the most vulnerable in its society, America does not fare well.