Employers committed to diversity often focus on statistics: how many members of a protected group are employed at any given time, and how diversity can help professionals bolster those numbers. However, one number that will not appear on EEO-1 reports is the number of pregnant women in your workforce. Employers ignore this element at their peril.
One barrier to examining pregnancy as an element of diversity is that many employers do not view this group as a protected class. The transitory nature of pregnancy makes it a challenge to consider pregnant women diverse — management struggles to conceptualize a woman as diverse where she is a member of a protected group one month, but not the next. Compounding the problem, there is a palpable social acceptance of behavior that, if applied to other protected groups, would be unacceptable and even overtly discriminatory.
Any right-minded employer knows better than to badger an employee with a disability about his or her condition, asking to touch the affected body part and asking the employee when he or she “really” expects to return to work. However, this behavior is common in the American workplace toward a pregnant employee, and it has legal ramifications.
An alphabet soup of statutes come into play when dealing with pregnancy and discrimination. Although pregnancy is not, by itself, considered a disability under the Americans with Disabilities Act, pregnancy-related conditions like hypertension and preeclampsia could potentially qualify. Title VII of the Civil Rights Act of 1964 was amended in 1978 by the Pregnancy Discrimination Act and requires an employer that provides leave to other employees with similar disabilities to grant the same dispensation to pregnant workers.
There are also related discrimination theories touching on pregnancy that generally create a cause of action for sex discrimination under Title VII. The Family and Medical Leave Act is also part of the mix when dealing with pregnancy. Finally, there are a patchwork of state law theories concerning pregnancy and child rearing that stretch from coast to coast.
If employers do not think this is a hot diversity topic, they should think again. David Lopez, the general counsel for the Equal Employment Opportunity Commission, recently presented to an American Bar Association conference, and he emphasized that pregnancy is one of the sole remaining areas of “old-fashioned, overt discriminations” alive and well in the United States. The EEOC plans to build capacity to search out and prosecute pregnancy discrimination claims.
Pregnancy-related legal issues are extremely complicated and can cause unwary managers to simply throw up their hands and decide a pregnant employee or candidate is “more trouble than she is worth.” At that point, the manager has most likely already stepped into legal liability. As diversity professionals, it is our job to help our managers navigate this often-challenging landscape.
Employers must ensure supervisors understand when and how to address often-shifting physical restrictions, and when to ask for help. Paternalistic assumptions about the capabilities of a pregnant employee or candidate must be strictly avoided. In short, legal awareness is the best defense against possible litigation arising from these issues.
But this legal awareness must be leavened with an understanding of the positive elements of creating a pregnancy-friendly workplace. Women of child-bearing age are a critical element of an employer’s talent pool and often represent an enormous investment in capital. It is not crass to view this as a valuable investment that may be lost if this workforce is not retained, both during pregnancy and beyond. Setting aside the more soft-side human resources aspects of this issue, there are real, bottom-line business reasons to consider this diversity element. Employee loyalty, morale and productivity all come into play.
As a final note on awareness, diversity professionals must keep male workers on their radar screen when considering pregnancy issues. Leave requests for childcare and fertility issues should loop in male employees as well, but those issues are often neglected by even the most seasoned management staff.
Rebecca P. Bromet is a partner at law firm Seyfarth Shaw. She can be reached at email@example.com.