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For Pregnant Women, New Guidelines Aim To Reduce Workplace Discrimination
Originally published on Tue July 22, 2014 2:03 pm
MICHEL MARTIN, HOST:
This TELL ME MORE from NPR News. I'm Michel Martin. We're going to spend much of the rest of this program today talking about issues in parenting. In a few minutes, our parenting roundtable will take on the issue of when to step in if you think a child is in danger. As you might imagine, we're talking about this because there have been a number of stories about parents being arrested for things like leaving a child in a park unattended when another parent believes the child to be in danger. But first, we're going to focus on how the workplace treats expectant parents. For years, expectant mothers and advocates have complained that laws protecting pregnant women have not been clear or consistently enforced. But now the Equal Employment Opportunity Commission, the EEOC, has stepped in. The agency has data showing that pregnancy-related discrimination complaints rose 46 percent between 1997 and 2011. So this month, the EEOC updated their enforcement guidance on pregnancy discrimination for the first time in decades. We wanted to hear more about this, so we've called Emily Martin, the vice president and general counsel at the National Women's Law Center. We are not related, to our knowledge. Emily, thank you so much for joining us.
EMILY MARTIN: (Laughing) Not to our knowledge. Thank you.
M. MARTIN: Also with us is Brigid Schulte, who's written about the new EEOC guidelines for The Washington Post, back with us once again. Brigid, thanks so much for joining us once again.
BRIGID SCHULTE: Thanks so much for having me.
M. MARTIN: So what exactly do these new EEOC guidelines call for? What do they do?
SCHULTE: Well, what they really do is clarify what workers can expect and what employers can reasonably offer their workers to accommodate them. Say if you're a pregnant worker, sometimes you will have diabetes. You'll need more water. Sometimes your doctor will say you shouldn't lift heavy things. You could - that could be sort of a physical impairment. Or you shouldn't stand so long. So a reasonable accommodation would be, say, carry around a water bottle or take light duty if you have sort of a physically demanding job.
M. MARTIN: So does it change the legal definition of pregnancy, how pregnancy is viewed under the law? Does it change that?
SCHULTE: Well, it doesn't change the view of pregnancy as much as what it does is it says that if a worker is able to work, you have to give them a reasonable accommodation. You have to be willing to work with them, whereas in the - you're right. The legal landscape has been very confusing over the years, and right now there's a big Supreme Court case that centers on the question of do you accommodate workers only who have been injured on the job or who have been injured off the job? And then that's where pregnancy comes in because you really can't argue that pregnancy is an on-the-job disability.
M. MARTIN: Let's talk a little bit more about the legal aspects of that in a minute. But Emily, before we do, I want to ask you to kind of help me understand kind of the legal issues here. But because your organization - one of its missions is to advocate for pregnant workers, what are some of the complaints that you've been hearing?
E. MARTIN: Well, we hear a lot of complaints from women who are denied really the simplest changes at work when they need them because of pregnancy, even though employers provide those sorts of accommodations if someone needs it because of a bad back or some other disease or injury. So for example, we've heard from women who work as cleaners and who have to lift heavy trash bags a couple times a day who were told, you have to go out on unpaid leave because even though we accommodate disabilities and we accommodate on-the-job injuries, we don't accommodate pregnancy. And that means that women have to go on to unpaid leave often relatively early in their pregnancies and use it all up before the baby's even born, at which point they can lose their job.
M. MARTIN: What is the hinge of these guidelines that are changing? Does the law still recognize pregnancy as a disability? What does it actually to? Does it redefine what's considered reasonable? - because I'm guessing that that's what employers are arguing about, that they're arguing about whether something is a reasonable accommodation or not. I can imagine a scenario where someone might say, well, lifting those bags is your job, and if you can't do that job, then you can't be here.
E. MARTIN: There are a couple key things that the EEOC guidelines clarify under current law. So one thing the EEOC did was make clear that the ADA, the Americans with Disabilities Act, requires employers to make accommodations for employees with disabilities, including pregnancy-related disabilities. So if you have gestational diabetes or if you have pregnancy-related carpal tunnel syndrome and that's the reason that you can't perform some part of your job, you have a disability under the ADA. And the employer has to make a reasonable accommodation. Now, what's reasonable depends on the particular job and the particular employer. But that's an important qualification because a lot of employers thought pregnancy is not a disability, so if it's related to pregnancy, we don't have an obligation.
M. MARTIN: I want to hear a little bit more about, also, if it affects fathers in a minute. But Brigid, I wanted to ask you - you've been reporting on both sides of this question. What have employers said to you about this?
SCHULTE: Well, you know, you hear different things from different employers. You know, in the white-collar world, what was very interesting is talking with employment lawyers. And what they'll say is that pregnancy discrimination tends to be very overt, but in more of a blue-collar setting. When I've talked with, say, the general counsel of the EEOC, he said it shocks him sometimes how - particularly in a blue-collar or low-wage setting - how overt it is. In one case, he said a judge had said, oh, where's the plaintiff? Isn't that the woman who should be home with her children? So there are some very hard and fast views about the role of women that come into play there. In the white-collar world, what you end up running into is there have been cases where women - employers have asked women, do you plan to get pregnant again? And they'll say yes, and then they'll find themselves sort of sidetracked, their direct reports taken away...
M. MARTIN: And that's not allowed. That's not permitted. Those kinds of questions are not permitted. But I note that the guidelines were updated on a 3 to 2 vote. Why is that? If there's such a bright line, why was the decision to update these guidelines so divided?
SCHULTE: It was a divided vote, largely along political lines. And the reasoning that the Republican-appointed commissioners gave is that this hadn't gone through a public vetting process, so there were some process questions. There is a Supreme Court case that's pending, and they felt that this kind of came too early, that the EEOC was overreaching. So there was a disagreement about process in there.
M. MARTIN: Emily, do these guidelines only affect women? For example, that there are some companies that do offer paternity leave. Are fathers affected by this? They don't experience the physical manifestations of pregnancy so far as we know, although, there's some interesting research that suggests that they do experience some physical changes. But are fathers affected by this?
E. MARTIN: One of the things that the guidelines say is that if an employer offers parental leave over and above the leave that you are entitled to to recover from the actual, physical effects of childbirth, that that parental leave has to be equally available to fathers and to mother's - that you can't give three months of leave to mothers and two weeks of leave to fathers. And in many ways, actually, all of the pregnancy discrimination guidelines affect fathers too because when women are losing their jobs because they're pregnant, that impacts the whole family. So in many ways this is a family issue, not just a women's issue, in every circumstance.
M. MARTIN: Brigid, what else do you want to report on on this? What else is interesting to you about this area? I think that, you know, people will react to this in different ways. Some people will find this very sort of surprising and appalling, and I think other people will also react and believe that this kind of is in conflict with, you know, biology as they understand it. What else is interesting to you about this?
SCHULTE: Well, you know, to be perfectly honest, it shocked me that in 2014 I'm even reporting of these kinds of things, that people get fired because their doctor says that they need water bottles - to walk around with water bottles - that they get fired or they lose their jobs because they need a stool; they can still do their jobs, they just need to sit - that there aren't accommodations that - that you can throw out your back at a golf game over the weekend if you're a guy, but that you may not necessarily get those same accommodations if you're pregnant. So I think what surprises me is that we're talking about it at all.
M. MARTIN: Brigid Schulte is a reporter for The Washington Post. She's the author of "Overwhelmed: Work, Love, And Play When No One Has The Time." She was kind enough to join us in our Washington, D.C. studios along with Emily Martin, who's the vice president and general counsel at the National Women's Law Center. And once again, I don't believe that we are related. Thank you, Emily. Thank you, Brigid.
E. MARTIN: Thank you.
SCHULTE: Thanks so much. Transcript provided by NPR, Copyright NPR.