Pregnancy Discrimination Can Occur in Policies Seemingly Intended to Protect Pregnant Workers

Pregnancy discrimination perhaps most commonly involves adverse employment actions directly related to an employee’s pregnancy or recent childbirth, such as refusing to hire a pregnant job applicant or terminating or demoting an employee who becomes pregnant. In some cases, however, actions, policies, or practices intended to benefit or protect pregnant workers or job seekers actually constitute unlawful pregnancy discrimination. For example, policies intended to protect pregnant women and their unborn children, known as “fetal protection policies” (FPPs), may violate Title VII of the Civil Rights Act of 1964, as amended by the Pregnancy Discrimination Act (PDA) of 1978, if they have the effect of creating disparate treatment based on gender. See United Automobile Workers v. Johnson Controls, Inc., 499 U.S. 187 (1991). Discrimination claims involving FPPs are now rare compared to other types of cases, but they remain an important part of the legal landscape of workplace pregnancy rights.

Many private-sector employers began enacting FPPs in the 1970s and 1980s, as the number of women in the workforce increased. These types of policies were common for jobs that involved the use of, or the risk of exposure to, chemicals that could potentially be harmful to a fetus. At a minimum, FPPs excluded pregnant women from working in positions that posed such a risk. Many FPPs went further than that, excluding all women considered to be of childbearing age, regardless of whether they had any plans to become pregnant.

The Supreme Court’s decision in Johnson Controls held that an FPP barring all “fertile female employee[s]” from certain positions violated Title VII and the PDA. Johnson Controls, 499 U.S. at 190. The defendant operated a battery manufacturing business. Lead is a primary component in the manufacturing process but is also considered a significant health risk for fetuses.

In 1977, the defendant enacted a policy that strongly discouraged female employees who could become pregnant from choosing jobs that posed a significant risk of lead exposure. The company acknowledged at that time that not all female employees of childbearing age may become pregnant, and “it would appear to be illegal discrimination” to exclude them categorically from certain jobs. Id. at 191.

The defendant changed the policy from optional discouragement to mandatory exclusion, however, in 1982, after several pregnant employees showed levels of lead in their blood that exceeded safety regulators’ recommendations. The new policy excluded all “women who are pregnant or who are capable of bearing children” from jobs that posed a risk of lead exposure. Id. at 192. This covered all female employees “except those whose inability to bear children is medically documented.” Id.

In ruling that this policy violated Title VII and the PDA, the Supreme Court noted that “the bias in [the defendant’s] policy is obvious.” Id. at 197. It allowed “fertile men, but not fertile women,” to decide “whether…to risk their reproductive health for a particular job.” Id. By “treat[ing] all its female employees as potentially pregnant,” the court held, the defendant had clearly discriminated on the basis of sex. Id. at 199.

Phillips & Associates’ pregnancy discrimination attorneys represent job applicants, employees, and former employees in New York City, helping them assert their rights in claims based on unlawful employment practices like pregnancy discrimination. Contact us online or at (212) 248-7431 today to schedule a free and confidential consultation with a member of our team of skilled and experienced legal advocates.

More Blog Posts:

Jury Awards $550,000 in Damages in Pregnancy Discrimination Case, New York Employment Attorney Blog, August 17, 2016

New York Legislature Considers Paid Family Leave Law, New York Employment Attorney Blog, April 13, 2016

Plaintiff in Pregnancy Discrimination Lawsuit Claims Employer Fired Her Twice for Same Pregnancy, New York Employment Attorney Blog, November 3, 2015

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