Unlawful Discrimination Based on Pregnancy and Caregiving Responsibilities Widespread Problem, Panelists Tell EEOC

Despite Laws, Guidance and Willingness to Work, Many Pregnant Women and Caregivers are Denied Job Opportunities, Workplace Modifications, Leave, and Equal Treatment

WASHINGTON—At a time when most pregnant women want and need to work, and more American workers struggle to balance work and family, discrimination against pregnant women and workers with caregiving responsibilities remains a significant problem, experts told the U.S. Equal Employment Opportunity Commission at a public meeting today. The meeting follows up on Commission meetings in 2007, when the Commission issued its groundbreaking "Enforcement Guidance on Unlawful Disparate Treatment of Workers with Caregiving Responsibilities" and in 2009 when the Commission issued "Employer Best Practices for Workers with Caregiving Responsibilities."

"Pregnancy discrimination persists in the 21st century workplace, unnecessarily depriving women of the means to support their families," said EEOC Chair Jacqueline A. Berrien. "Similarly, caregivers – both men and women – too often face unequal treatment on the job. The EEOC is committed to ensuring that job applicants and employees are not subjected to unlawful discrimination on account of pregnancy or because of their efforts to balance work and family responsibilities."

Despite the passage of the Pregnancy Discrimination Act more than 30 years ago, women still often face demotions, prejudice, and even job loss when they become pregnant. The past 40 years have seen a major increase in the number of women choosing to work while pregnant and during the later stages of pregnancy, Emily Martin, Vice President and General Counsel of the National Women's Law Center, told the Commission. Moreover, women currently make up 47% of the nation's workforce, according to Bureau of Labor Statistics data cited by Judith Lichtman, Senior Advisor for the National Partnership for Women & Families. They are now the primary, or co-primary, breadwinners in nearly two-thirds of families. Because of this, "women cannot afford to lose their jobs or income due to pregnancy or childbirth," Lichtman said.

In addition to discrimination based on pregnancy, women and men face obstacles in their work lives due to their roles as caregivers. According to Lynn Friss Feinberg, Senior Strategic Policy Advisor at the AARP Public Policy Institute, the aging of the population and changing demographics mean that "42% of U.S. workers have provided care for an aging relative or friend in the past five years," and almost half of U.S. workers expect to provide eldercare in the next five years, Feinberg said. These numbers do not include workers who care for children.

"Discrimination against pregnant women and caregivers continues to be an issue of vital concern for the Commission," said Commissioner Stuart J. Ishimaru. "Employers should not make decisions based on stereotypes and presumptions about the competence and commitment of these workers. EEOC will vigorously enforce the anti-discrimination laws as they apply to pregnant women and caregivers."

Panelists Sharon Terman and Joan Williams cited numerous examples of the kinds of discrimination pregnant workers and workers with caregiving responsibilities experience. Terman, of The Legal Aid Society Employment Law Center, described situations in which pregnant women were met with harassment and hostility in response to their pregnancies, or were subjected to decreased hours, forced unpaid leave, or job loss. Williams, Director of the Center for Worklife Law at Hastings Law School and a leading expert on caregiver bias, recounted the story of a pregnant worker who was not permitted to alter her uniform due to her pregnancy but forced to take leave when it no longer fit her. Williams also pointed out examples of men who were penalized by their employers for requesting to use leave to which they were entitled for caregiving responsibilities, based on gender stereotypes that dictate caregiving should be "women's work."

While pregnancy and discrimination arising from caregiving impacts all segments of the workforce, low-wage workers are particularly affected, said Maryann Parker, Associate General Counsel of the Service Employees International Union. She noted the change away from manufacturing and towards service sector jobs for low-wage workers—jobs which are notably more likely to be part-time and low wage. These jobs often entail rigid work schedules with no flexibility or, on the other end of the spectrum, completely unpredictable schedules with no fixed hours from week to week, making planning for caregiving more difficult.

Across the board, there is a measurable "motherhood wage penalty" of as much as 5% per child, controlling for education, experience, and other factors known to affect wages, Professor Stephen Benard of Indiana University testified via video-conference from the EEOC's Indianapolis district office. This may be due to unconscious stereotyping of the capabilities of mothers. "Motherhood constitutes a significant risk factor for poverty," Benard said, and it is possible that "the gender gap in wages may be primarily a motherhood gap."

A number of witnesses called for stepped-up enforcement and greater guidance on the subject, as well as closer coordination between the EEOC, which enforces laws prohibiting discrimination on the basis of sex, pregnancy, and disability, and the Department of Labor, which enforces the Family and Medical Leave Act and the Affordable Care Act's Break Time for Nursing Mothers provision of the Fair Labor Standards Act.

Deane Ilukowicz, Vice President for Human Resources at Hypertherm, a manufacturer that has managed to provide a great deal of work-life balance to its workers, said that even employers that want to provide the maximum flexibility possible within the constraints of their businesses have trouble reconciling the requirements of the various laws affecting caregiving. She called for greater clarity and interagency coordination to help employers comply with the law, and implement best practices for work-life balance.

The Commission will hold open the Feb. 15, 2012 Commission meeting record for 15 days, and invites audience members, as well as other members of the public, to submit written comments on any issues or matters discussed at the meetings. Public comments may be mailed to Commission Meeting, EEOC Executive Officer, 131 M Street, N.W., Washington, D.C. 20507, or e-mailed to Commissionmeetingcomments@eeoc.gov. All comments received will be made available to members of the Commission and to Commission staff working on the matters discussed at the meetings. Comments will also be plaved in the EEOC library for public review.