GRSJ224/pregnancyandmaternitydiscrimination

From UBC Wiki

Pregnancy and Maternity Discrimination in the United States

Fetus in the womb.

Discrimination is defined as the act or practice of a prejudiced outlook, action, or treatment performed categorically.[1] Pregnancy and maternity discrimination refers to the displacement of unfair treatment in the workplace towards women during or after childbirth, where pregnancy refers to women who are undergoing their pregnancy period and maternity is the duration 26 weeks following childbirth.[2]

In spite of increased policies implemented to protect and defend individual cases, pregnancy discrimination continues to perpetuate as a rising and common issue in the workplace. Women are routinely forced to choose between their health and pay checks where pregnancy should not pose as an obstacle of choice.

Definitions

Pregnancy and Maternity Discrimination

To help comprehend pregnancy discrimination, awareness of other forms of discrimination it falls under must be understood.

Visual representation of segregation.

Workers Discrimination

Workers Discrimination occurs when employees or applicants are treated unfavourably or are withheld from employment opportunities by employers due to race, skin colour, nationality, disability, religion, age, or relationships with individuals of mentioned characteristics.[3] Examples include:[4]

  • Suggestions of candidate preferences in company marketing.
  • Excluding candidates during recruitment.
  • Denying compensation or benefits to employees.
  • Paying people different salaries.

Direct Discrimination

Direct discrimination is defined as unfair or unfavourable treatment due to belonging to a protected group and having protected characteristics over others[5], also known as disparate treatment. Unless there is statutory exceptions, direct discrimination cannot be excused or defended.[5] Examples of this include:

  • Favourable treatments to disabled persons over non-disabled persons when making adjustments to work accommodations.[5]
  • Denying considerations for pregnant female candidates for promotions.[6]
  • Perceptions of protected characteristics: discrimination by perception.[7]
    • Example: Failing to supervise student due to the belief that they are LQBTQ+.
  • Connections to the protected characteristics: discrimination by association.[8]
    • Example: Refusal of service because you are accompanied by someone of a racialized group.

Indirect Discrimination

When rules or policies that are applied to all workers disadvantage individuals in protected target groups,[9] it is referred to indirect discrimination, also known as disparate impact. This form of discrimination is not illegal, however, poses as a serious issue if the employer is unable to justify the policy causing adverse impacts on certain individuals. Examples of this include:

  • Refusal of requests for part-time work or asking for strict schedules from employees.[10]
  • Irrelevant role requirements that disproportionately discriminates against groups.[9]
  • Employees asking upper management to not consider pregnant candidates or females wanting children in the future for promotions or job opportunities.[6]

Effects

The Equal Employment Opportunity Commission briefing about human capital activities and opportunity programs.

Harassment

Harassment refers to any form of persistent unwanted contact to an individual which violates Title VII of the Civil Rights Act of 1964.[10][11] Any act that has a purpose of creating a degrading or humiliating environment for the receiver includes (but are not limited to):[12]

  • Use of physical violence or intimidation.
  • Intentional public humiliation.
  • Racial or homophobic insults.
  • Unwanted stalking.
  • Excessive monitoring of duties in the workplace.
  • Blatant exclusion from the collective.

Victimization

Victimization refers to unfair treatment to an employee due to assertion of legal rights or opinions with an act or helping another with the procedure.[10][13] It is illegal for employers to retaliate with workers that have already filed a complaint or investigation against them.[3] Anyone who believes that they have experienced harassment themselves or witnessed it in the workplace can file a complaint with the Equal Employment Opportunity Commission to take immediate and remedial action.[3][14] Through the EEOC, workers can subsequently file a lawsuit after following the established time limit of the charge.[14]

Health Complications

The body is constantly shifting through phases during pregnancy. Often, high levels of stress can be caused for a variety of reasons, including acclimating to discomfort of the body's natural reactions to pregnancy, including nausea or headaches, as well as the consistent change of hormones causing mood swings.[15] Still, women can acquire excessive amounts of stress through managing job responsibilities that may involve discriminatory comments or upsetting situations regarding their pregnancies in the workplace.

Numerous women are able to produce healthy children in spite of stress, however, most women experiencing immense stress can encounter health complications for their children during pregnancy.[15] These elevated levels can generate spikes in blood pressure that can cause increased chances of producing premature babies or low-birthweight babies that are susceptible for health problems later in life.[15] Research is still conducted on how stress can exactly cause childbirth complications, though most research reasons that its affect on the immune system increases the chance of infection of the uterus which may cause premature birth.[15] These signs may later link to the child's brain development and cause effects for their immune systems.[15]

Equality Laws and Acts

Pregnancy Discrimination Act

The Great Seal of the United States.

Enacted in 1978, the Pregnancy Discrimination Act was the first law developed to protect pregnant employees in the workforce against discriminatory acts.[16] The act amends Title VII of the Civil Rights Act of 1964[11] that clarifies that sex-based employment discrimination includes pregnancy discrimination, where pregnant women are to be treated on the basis of their ability or inability to work comparably to other employees.[17] Its protection covers cases regarding pregnancy, childbirth, or related medical conditions in companies that have a minimum of fifteen employed workers.[4] According to the law, the act outlined that women cannot be denied of promotions, be demoted, forced to stop working, or fired due to pregnancy.[16]

Maternity Leave

Pregnant workers must be permitted to work as long as they can safely and comfortably perform duties of the job, however, considering maternity absence, women who are pregnant must provide documentation for medical clearance procedures if their employer implements the similar policy to all workers to grant leave or pay sick benefits.[18] Under the Pregnancy Discrimination Act, an employer must hold positions open for pregnancy related absences for the same duration as employees on a sick or temporary disabled leave, and cannot prohibit return to work for a specific length of time after childbirth.[18]

The United States currently sits as one of the only industrialized countries in the world that does not offer every citizen paid family leave.[19] Under the Family and Medical Leave Act, covered employees are able to take unpaid, job protected leave and have continuous health insurance coverage for medical related reasons, including pregnancy.[20] The act ensures only 60 percent of U.S. citizens guaranteed leave if the employee has worked under the employer for at least 12 months and 1,250 hours of that time span, [20] which has been ridiculed by men and women who are freelancers or work with smaller companies that are not covered.[19]

Pregnant Workers Fairness Act

The Pregnant Workers Fairness Act is an additional law that several cities and legislations have passed to further protect the rights of pregnant workers. The United States Congress has not passed this act, however, several states including New York,[21] Philadelphia,[22] Washington D.C,[23] and Massachusetts[24] have already executed the policy.[25] Similar to the Pregnancy Discrimination Act, the Pregnant Workers Fairness Act would work to reinstate the importance that employers cannot enforce pregnant employees of their jobs or deny reasonable accommodations to allow continuous safe work.[25] This act would allow employers and pregnant workers to have productive, interactive processes to determine appropriate action regarding accommodations and protections in the workplace— similar to the Americans with Disabilities Act of 1990. Employers would help protect women from discrimination from other workers, including intimidations, threats, or retaliations against them.[25] Having the additional policy would help promote positive pregnancy periods for workers protected. The policy would assist families to ensure that potential job loss will not put strain on families or put their lives at risk financially by helping women re-enter the job market.[25] Another way that the act would help families is through promoting safe, healthy pregnancies. By protecting their health insurance, it assures designated payments for prenatal visits and postpartum care for new mothers.[25] Protection for accommodating longer periods of maternity leave would provide workers with full recovery and sufficient bonding time with their newborn.[25]

Statistics

Despite legal protections, pregnancy discrimination still remains widespread. Between October 2010 and September 2015, nearly 31,000 charges of pregnancy discrimination were filed in the United States alone[16] where women were denied requests for simple accommodations including breaks, prenatal visits, or less demanding work duties.[26]

According to the National Partnership for Women and Families, 61 percent of women have reported to still be employed, self-employed, or working full-time hours during their pregnancy, where 42 percent have avoided accommodation requests due to fear of position repercussions and losing job benefits.[26] During their shifts, 71 percent of pregnant employees reported denied accommodations from upper management, including frequent breaks.[26]

Reports have stated 1 in 4 mothers returning to work only ten days after childbirth[27] where many have expressed breastfeeding a significant challenge.[26] Frequent reports experienced discrimination through losing pay, hours, promotions, and responsibilities upon return. Women have disclosed that coworkers had told them that they would not have the ability or commitment to the job once returning from their leave.[26]

Asian and Pacific Islander women make up 43.8 percent of employees who work around chemicals, including manicurists and pedicurists.

Industry

Pregnancy discrimination reports have been recorded across a myriad of economic classes and industries, however we see the largest number of reports from positions where most women are hired. Latina women make up 6.5 percent of employed workers in manufacturing jobs where they are constantly moving and lifting heavy objects, immigrant women make up 7 percent of employed workers as cleaners or housekeepers, and African-American women constitute towards 5.9 percent of workers in hospital nursing or care home caregivers.[28] Furthermore, Asian and Pacific Islander women make up 43.8 percent of "appearance workers" which exposes them to chemicals that have been associated with miscarriages.[28] These positions include skin care specialists, makeup artists, or manicurists and pedicurists.[16][25][28] Most women in these lower income jobs are also subject to a higher likelihood of pregnancy discrimination, as their occupations are considered more physically demanding and inflexible,[25] requiring further accommodations.[29] Consistent strain or repetitive movement could potentially lead to other linked health problems, being muscle, back, and ankle pain, as well as varicose veins.[28]

Race and Ethnicity

African-American women are more susceptible to having preterm babies than Caucasian or other ethnic groups.

Statistics show that African-American, Latina, and immigrant women are more susceptible to health complications as they constitute majority of the positions in physically demanding, low-wage occupations.[28] Reports note that nearly 3 in 10 charges of discrimination was filed by African-Americans, despite only serving as 14 percent of the workforce population.[16] Women of colour typically suffer from pregnancy complications and outcomes due to lower access to primary care and adequate maternal health care.[28] Along with Latina's, 40 percent of this population normally act as the primary "breadwinners" or "co-breadwinners" for their families,[28] therefore loss of job positions can be of an incredible financial burden. African-American women are three to four times more likely to die from pregnancy-related complications than Caucasian or other ethnic groups,[30] where they fall at a higher risk for pre-term labor, preeclampsia, and hypertensive disorders due to pre-natal stress including discrimination. [25][28]

See also

References

  1. "Discrimination". Merriam-Webster. Retrieved December 2, 2018.
  2. "Equality and Diversity". Retrieved December 2, 2018.
  3. 3.0 3.1 3.2 "Types of Employment Discrimination with Examples". The Balance Careers. Retrieved December 2, 2018.
  4. 4.0 4.1 Rosenburg Mckay, Dawn (April 17, 2018). "The Pregnancy Act of 1978". The Balance Careers. Retrieved December 2, 2018.
  5. 5.0 5.1 5.2 "Direct Discrimination". Retrieved December 2, 2018.
  6. 6.0 6.1 "Discrimination". University of Ottawa. Retrieved December 2, 2018.
  7. "Perceptive Discrimination". University of Cambridge. Retrieved December 2, 2018.
  8. "Associative Discrimination". University of Cambridge. Retrieved December 2, 2018.
  9. 9.0 9.1 "Indirect Discrimination". Retrieved December 2, 2018.
  10. 10.0 10.1 10.2 "Pregnancy and maternity discrimination in the workplace".
  11. 11.0 11.1 "Title VII of the Civil Rights Act of 1964". U.S Equal Employment Opportunity Commission. Retrieved December 2, 2018.
  12. "Harassment". Retrieved December 2, 2018.
  13. "Victimization". Retrieved December 2, 2018.
  14. 14.0 14.1 "How to File a Charge of Employment Discrimination". U.S Equal Employment Opportunity Commission. Retrieved December 2, 2018.
  15. 15.0 15.1 15.2 15.3 15.4 "Stress and Pregnancy". Retrieved December 2, 2018.
  16. 16.0 16.1 16.2 16.3 16.4 "By the Numbers: Women Continue to Face Pregnancy Discrimination in the Workplace" (PDF). National Partnership For Women & Families. October 2016. Retrieved December 2, 2018.
  17. Siegal, Reva B. (March 1985). "Employment Equality under the Pregnancy Discrimination Act of 1978". The Yale Law Journal. 94: 929–956 – via JSTOR.
  18. 18.0 18.1 "Pregnancy Discrimination". U.S. Equal Employment Opportunity Commission. Retrieved December 2, 2018.
  19. 19.0 19.1 Strauss, Elissa (February 5, 2018). "The only industrialized country that doesn't offer all of their citizens paid family leave". CNN. Retrieved December 2, 2018.
  20. 20.0 20.1 "FMLA (Family & Medical Leave". U.S. Department of Labor. Retrieved December 2, 2018.
  21. "The New York City Pregnant Workers Fairness Act". A Better Balance. Retrieved December 2, 2018.
  22. "Do You Know What Philadelphia Law Says About Pregnant Workers?". Murphy Law Group. Retrieved December 2, 2018.
  23. "Protecting Pregnant Workers Fairness Act" (PDF). Office of Human Rights: District of Columbia. Retrieved December 2, 2018.
  24. "MCAD Guidance on the Pregnant Workers Fairness Act". Massachusetts Commission Against Discirmination. Retrieved December 2, 2018.
  25. 25.0 25.1 25.2 25.3 25.4 25.5 25.6 25.7 25.8 "Pregnant Workers Fairness". A Better Balance. Retrieved December 2, 2018.
  26. 26.0 26.1 26.2 26.3 26.4 "Expecting and New Mothers Face Avoidable Challenges in the Workplace". Retrieved December 2, 2018.
  27. "Paid Leave". Retrieved December 2, 2018.
  28. 28.0 28.1 28.2 28.3 28.4 28.5 28.6 28.7 "Accommodating Pregnancy On The Job: The Stakes for Women of Color and Immigrant Women". National Women's Law Center. June 20, 2014. Retrieved December 2, 2018.
  29. Strauss, Elissa (February 1, 2018). "Fired for being pregnant: Another kind of discrimination women face at work". CNN. Retrieved December 2, 2018.
  30. "Pregnancy-Related Deaths". Centers for Disease Control and Prevention. May 9, 2018. Retrieved December 2, 2018.