Pregnancy bias is a continuing problem for women in the workplace, according to both employment attorneys and the U.S. Equal Employment Opportunity Commission’s statistics.

The reasons for this are varied.

Ernie Haffner, an attorney in the EEOC’s Washington, D.C. Office of Legal Counsel, said pregnancy discrimination persists because it is often subconscious.

“People make assumptions about pregnant workers, like they are going take a lot of time off, or they aren’t going to be committed to the employer,” he said.

Patricia Shiu, an attorney with the Legal Aid Society-Employment Law Center in San Francisco, said demographics also play a role, with a workforce comprised of at least 50 percent women, the majority of whom are in their child-bearing years. And an increasing number of women have little choice about working during and after their pregnancy because of their economic situation, she noted.

Andover, Mass. employment defense attorney William E. Hannum III noted that the percentage of claims found to be meritorious has also risen over recent years, suggesting that plaintiffs are more aware of their rights.

Hannum, who practices at Schwartz Hannum, also suggested that the current economy could be a factor influencing the increasing number of claims.

“When you have a little bit of give in the workforce, it’s easier to make due when somebody has to go out on a leave of absence,” he explained. But in a down economy, employers may have a more difficult time accommodating a pregnancy.

According to EEOC statistics, between 1992 and 2005, pregnancy discrimination claims rose more than 30 percent, from 3,385 in 1992 to 4,449 in 2005. In financial terms, the monetary awards to pregnancy discrimination plaintiffs rose from $3.7 million in 1992 to a high of $20.6 million in 2000 (and those amounts don’t include damages awarded in litigation).

Jocelyn Samuels, Vice President for Education and Employment at the Washington, D.C. National Women’s Law Center, said the rising statistics could be just the tip of the iceberg.

“The fact of the matter is that it’s never easy to file an EEOC charge or lawsuit, so plenty of other women out there are presumably subjected to these same kinds of illegal practices who decided not to pursue legal action,” she said.

Subtle Discrimination

The 1978 Pregnancy Discrimination Act amended Title VII to include discrimination on the basis of pregnancy, childbirth or related medical conditions.

Lawsuits can be based on discriminatory hiring, firing or the denial of advancement or fringe benefits, such as seniority.

“Close to 30 years after enactment of the Act, employers still don’t universally realize that pregnancy discrimination is illegal and don’t understand the many permutations of conduct that can constitute illegal discrimination,” Samuels said.

Pregnant women are also protected under the 1996 Family and Medical Leave Act, as well as various state employment laws.

But Shiu said employers continue to discriminate, even blatantly.

A client who works for a major national retailer was told that she wouldn’t have a job to come back to after she informed her boss she was pregnant with her second child.

“She was told that they had accommodated her once and they weren’t going to do it again,” Shiu said.

But more typically, “there are no smoking guns,” Samuels said.

Shiu agreed that “there can be very subtle ways for employers to discriminate against pregnant women. A lot of times it is couched in terms of child care, like asking during an interview, ‘Are you available to work late all the time?’ or ‘Can you travel at a moment’s notice?’ which may try to weed out women with familial responsibilities.”

Samuels noted a recent 2nd Circuit decision in which a school psychologist alleged she was denied tenure because she was stereotyped as being unable to perform the basic requirements of her job after she had a child. (Back v. Hastings On Hudson Union Free School Dist, 365 F.3d 107 (2004).) The court reversed a summary judgment for the school, holding that a gender-based stereotype about women’s abilities to work and parent was actionable.

“That kind of stereotyping – the expectation that mothers are by definition less committed, or are sub-par workers – is in and of itself discrimination,” Samuels said, noting that an increasing number of claims are based on this stereotype.

‘Put On Blinders’

An employee’s pregnancy definitely impacts the employer, Hannum said.

“There are a lot of challenges and costs, from paperwork to figuring out what to do for the two to three months an employee will be gone,” he noted.

But he said he advises his clients to “put on blinders” when it comes to pregnant employees.

“Pregnancy is a protected category. Set it aside and don’t talk about it in terms of performance or productivity,” he said. “You don’t know how someone is going to do based on a generalization, so don’t make it. Try to judge someone by performance alone.”

Even well-intentioned comments can create problems.

Because pregnancy, unlike race, isn’t a taboo subject, conversations about an employee’s pregnancy may seem like an innocuous, even polite, inquiry.

But Hannum noted that questions like “When are you due?” may get a different response when asked by a manager.

“I’ve seen it become an issue where an employee has been excited about her pregnancy and talked about it with her co-workers, but then reacted very differently when a manager tried to participate in that conversation,” he said. “There may be a perception that if the manager is talking about it, then there’s going to be a problem.”

Hannum also noted that accommodations can be an issue for pregnant employees. Legally, because pregnancy is not considered an ADA-protected disability, employers are not required to make accommodations for pregnant employees, such as finding a temporary alternative to lifting heavy weights.

“But I would caution employers to consider two things,” Hannum said. “First, is there a state law that is more protective than the ADA?” because certain states may have broader protection and require certain accommodations.

Second, “watch out for whether the employer has a policy that is applied consistently in strict accordance with the law. For example, if a different employee has been accommodated for a non-disability health issue, and the employer then says it will not accommodate a pregnant employee because that’s not considered a disability, that puts an employer at risk for a pregnancy discrimination claim.”

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