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Attacking Motherhood and Apple Pie: Pregnancy Discrimination in the Workplace

by Al Vreeland

What could be more noxious to the American soul than an assault on motherhood? We all have a mother (though some might question the genetic origin of lawyers). Many of us return to her apron strings when we need reassurance that we haven’t become fat and stupid (or at least completely so). And there’s no worse schoolyard insult than one leveled at the virtue of one’s maternal lineage.

So who in his right mind would take on mom? It’s you, the American employer, if you believe the Equal Employment Opportunity Commission’s (EEOC) recent charge statistics. Over the last decade, the number of charges alleging pregnancy discrimination increased 49 percent — 12.5% in 2008 alone. Is this a wide-scale backlash for years of force-feeding Brussels sprouts? Possibly, but a more likely explanation stems from basic misconceptions on both sides of the employment relationship.

HR Guide to Employment Law: A practical compliance reference manual covering 14 topics, including discrimination

Fairness, not preference
Advocacy groups for working moms have put the word out that moms are protected by the Pregnancy Discrimination Act (PDA). True enough, but many assume that the PDA entitles employees to specific benefits like paid maternity leave. Not so. The PDA prohibits employers from treating pregnant employees worse than employees who aren’t pregnant but have other medical conditions; it doesn’t require more favorable treatment. So if an employee would be entitled to medical leave for surgery, an employer should provide equivalent benefits for those workers absent because of pregnancy.

The Family and Medical Leave Act (FMLA), however, does guarantee 12 weeks of parental leave to eligible employees (those who have worked at least one year and 1,250 hours in the last 12 months). The leave is unpaid, but the employee need not meet any medical conditions (unless the leave is taken before the birth of a child because of medical complications). In a nod to the prevalence of two-earner households, FMLA leave is available to both mom and dad.

There are misconceptions on the other side of the paycheck as well. Some supervisors assume that a new mother will lose focus on her job when she returns (or that she may not return at all). As the stereotype goes, doctor appointments, soccer games, and parent-teacher conferences will take priority and work will be relegated to the back burner.

Like any other major life event, employers can’t assume how a person will adjust. My mother took six weeks off to have me and then worked without a break until retirement (I was an annoying child). Others who have less aggravating children may find the experience more rewarding. It’s fair to discuss the employee’s plans and expectations (both before and after leave), but the employer should never assume it knows how a worker will juggle her new parental responsibilities.

State-by state comparision of 50 employment laws in 50 states, including pregnancy leave, breastfeeding, and small necessities leave

Empty desk syndrome
Like a girlfriend who leaves you for another guy, when an employee is out on extended leave, an employer sometimes find that it doesn’t miss her as much as it thought it would. The work still seems to get done or another employee does a better job covering her desk. If the employee has been on FMLA leave, proceed cautiously before deciding not to return her to work. Finding that another employee does the job a little better won’t be enough, but if an employer uncovers serious misconduct or performance issues, it may have cause to take action.

Audio Conference: Managing Pregnant Employees: Avoid ADA, FMLA, and PDA Traps

Good employees have kids
Replacing employees is expensive and frequently a crapshoot. To keep talent, employers may have to accommodate the demands of parenthood. By the same token, employees who maintain their work as a top priority shouldn’t feel that they’re being shorted. The trick is to work with employees to define their expectations and develop staffing plans and career paths that work within those expectations and take advantage of the talent an employer has. Also, remember that those expectations may change with the demands of parenthood, so staffing plans should be revisited and adjusted accordingly.

Much of what we write about here is perception — how the decisions employers make today will be perceived two years from now by a jury of your fellow Wal-Mart shoppers. A jury will often be sympathetic to a working mother struggling to balance the demands of child-rearing and putting food on the table. Though you may focus on the work-related issues, remember that a jury will see the whole picture.

Al Vreeland is an editor of Alabama Employment Law Letter and a founding member of Lehr Middlebrooks & Vreeland, P.C., in Birmingham. You can reach him at (205) 323-9266.