Increase in pregnancy discrimination lawsuits on the upswing, lawyers say

By Mike Scott

Legal News

The number of pregnancy discrimination incidents being reported by women around the country has been on the rise in recent years, due in part to the recession, according to two local labor and employment law attorneys.

One reason is that more women are aware and willing to report such cases, possibly because they better understand their rights in the workplace, said Sue Ellen Eisenberg, managing partner of Sue Ellen Eisenberg & Associates in Bloomfield Hills.

According to the U.S. Equal Employment Opportunity Commission (EEOC), the number of charges filed by pregnant women detailing workplace discrimination has risen by 56 percent in the last 12 years to nearly 6,200 reported cases in 2009. Monetary awards have more than tripled over that time to $16.8 million.

By itself, this would be an alarming trend, and it is even more noteworthy since the birthrate in the U.S. has been declining over time, accelerated over the past couple of years as the global economy has waned.

"Even before the last few years, pregnancy discrimination complaints were among the fastest growing in the employment field," Eisenberg said. "The rising cost of health care might be playing a role in some of this discrimination as well but the awareness factor is important."

The National Employment Lawyers Association (NELA), an organization that represents the interests of plaintiffs' lawyers in employment issues, also has indicated that discrimination against pregnant women is of rising concern.

The statistics are just one issue. The fact is such data about reported pregnancy discrimination incidents is a threshold matter at best. As in cases of domestic abuse, it is widely believed that the number of workplace discrimination cases filed against an employer represent only a fraction of the actual incidents, principally because some pregnant employees fear that reporting their concerns will make them targets for retaliation.

The increase in pregnancy discrimination complaints is not simply attributable to more awareness among women of their workplace rights, Eisenberg said. She believes it is a troubling trend that requires action.

"Pregnant women can not only continue to complete their job tasks at or above the level of their co-workers, but after they have a child they can continue to become an important part of a workplace," Eisenberg said.

That goes for both white-collar and blue-collar workers, both of whom have been impacted by layoffs while pregnant. Whether they return to work after their child is born is a personal decision that they and any immediate family members can and should make together, consistent with the rights under federal and state law such as the Family Medical Leave Act (FMLA), Eisenberg said.

"The mere presumption that women with babies will not return to work full-time is an impermissible stereotype," Eisenberg said. "Pregnant women can and do frequently return to work following the birth of their child. And these women should understand their rights and know that pregnancy is never a reason for their dismissal or unfounded poor job performance reviews."

In reality, it is an issue of the stereotyping of women, said Kathleen Bogas, managing partner of The Law Office of Kathleen Bogas in Bingham Farms. Employers must treat pregnant women in the exact same manner that they treat any other employees, she said. Pregnant women, under provisions of the Americans with Disabilities Act, can request special accommodations that, if reasonable, must be granted in most instances.

"Employers sometimes don't look at the level of contributions of pregnant employees," Bogas said. "We are definitely seeing an increase in the number of complaints in our office."

She feels that the weak economy is directly related to the number of increased reported discrimination instances because of the cost of human capital and health insurance, and that more workers are responsible for additional roles as budgets are squeezed. Often the employer will "lay off" a pregnant employee rather than fire them, giving them an opportunity to claim downsizing as a reason for the move, Bogas said.

"You may see a progress report indicate that the employee was a poor performer, which is why they were laid off according to the employer," Bogas said. "But if that woman was such a poor performer why was she even working there in the first place?"

Employers could be subject to punitive damages, lost wages and benefits, and court and legal fees if found guilty of pregnancy discrimination in federal court. A state court also could add damages for mental anguish and emotional distress.

"The challenges encountered by pregnant women in the workplace may not be as bad as they once were. However, progress should never justify complacency," Eisenberg said, noting that it has been 32 years since Pregnancy Discrimination Act was signed into law.

Published: Thu, Oct 21, 2010

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