Protecting pregnant women in the workplace

UD law professor documenting incidents of discrimination.


University of Dayton law professor Jeannette Cox said she has found legal case after legal case where pregnant women have been fired or otherwise penalized at work after announcing their pregnancies.

  • A lab technician was involuntarily put on unpaid leave after asking to be temporarily reassigned to avoid chemicals that could harm her fetus.
  • A nursing home activities director was let go because she couldn’t move a table co-workers routinely had moved for her before she got pregnant.
  • A pregnant retail worker was fired because she drank water on the job.

“Going five hours without drinking water is not compatible with a healthy pregnancy,” Cox said. “The workplace hasn’t been designed for pregnant women. I have experience with a lot of people who have been asked to leave because the workplace hasn’t been flexible.”

Cox is using the findings to support her push for more protection of working women in the workplace. She said minor accommodations as required by the Americans With Disabilities Act could keep pregnant women on the job.

Her research “Pregnancy as ‘disability’ and the Amended Americans with Disabilities Act” paper is being published this month by the Boston College Law Review.

Cox contends that current laws like the Pregnancy Discrimination Act and the Family Medical Leave Act don’t go far enough to help pregnant workers — particularly in jobs that are low-paying, labor-intensive or historically male professions like fire fighting, construction and law enforcement.

While those with limiting conditions caused by pregnancy might be protected by the ADA, Ohio State University law professor Ruth Colker said pregnancy on its own is not a protected condition.

“It might be that the pregnancy caused the impairment, but the impairment is the disability,” she said.

Cox said recent expansions to the law includes people with minor temporary physical limitations comparable to pregnancy’s physical effects.

Minor accommodations should be made to keep pregnant women on the job as well, she said.

“The problem isn’t pregnant women’s bodies. The problem is how we structure work places (in ways) that don’t include pregnant women and others with disabilities,” Cox said. Cox acknowledged that some feminist scholars question the tactic of linking pregnancy with a disability. They contend that women have worked hard to remove the notion that pregnancy is a sickness and that women’s bodies are deficient when compared to male bodies.

Ohio State University graduate Ally Day, who specializes in disabilities studies as well as women’s and gender issues, called Cox’s approach “clever.”

The notion of “disability” should be refashioned, she said.

“The workplace is creating the disability not the women with the pregnancy.” Day said. “I think there just is a stigmatization and there is kind of an ingrained ableism. We tend to think that disability is the worse possible case, (that) it is the worst possible thing.”

The Equal Employment Opportunity Commission filed 20 pregnancy discrimination lawsuits in 2011, but had about 5,800 complaints.

It had just less than 4,000 complaints in 1997. Complaints peaked at 6,285 during the economic crisis in 2008.

Lisa Maatz, director of public policy and government relations for the women’s advocacy group American Association of University Women, said there are gaps in Pregnancy Discrimination Act and FMLA.

FMLA leave applies to companies with 50 or more employees, and that leave is unpaid. The Pregnancy Discrimination Act only gives accommodations to pregnant women if accommodations are offered to other workers .

“The thing with the ADA is you just keep working,” she said. “As much as I don’t like referring to pregnancy as a disability or sickness, I don’t want a pregnant women to not be able to work or not work as long as she wants. I doubt she (the pregnant worker) cares about the semantics. She just wants her job.”

Amy Zvovushe of Connecticut last month told ABC News that she was instructed to resign last year after telling her employer she was pregnant.

The marketing company’s human resources staffers allegedly told the 31-year-old, a senior program manager, she didn’t qualify for FMLA because she had only been at the company for four months. Employees must work a year to qualify for FMLA protection, according to the law. California, Connecticut, New Hampshire and Michigan are among the seven states that require private employers to provide accommodations for pregnant women, the network reported.

Legislation that would require employers in New York to provide ‘reasonable accommodation’ like stools and extra restroom breaks to pregnant women was introduced Jan. 19. Maatz advocates a comprehensive family leave law that fills gaps in the current act and helps families better navigate the system.

“With a few minor modifications, they could enable her (a pregnant woman) to keep working and draw a paycheck,” Maatz said.

Melissa Josephs, director of equal opportunity policy at the Chicago-based national advocacy organization Women Employed, said that despite advancements of women in the workforce, many employers still think pregnancy and motherhood will result in an unfocused and un-dedicated employee who may or may not return to work after delivery.

Her organization fields hundreds of calls from women wanting to know what their rights are.

“‘I am pregnant. When should I announce it?’ A lot of people know they are going to get discriminated against because they are pregnant,” she said. “I don’t think I would announce it in advance.”

Contact this reporter at (937) 225-2384 or arobinson@DaytonDailyNews.com.



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