Since 2016, there’s been a steady rise in the number of federal pregnancy discrimination lawsuits. And thanks to the coronavirus, this trend accelerated in 2020. But why does this trend exist and what does it mean for pregnant workers?
Pregnancy Discrimination Lawsuit Statistics
According to data research by Bloomberg Law, in 2016, there were about 235 federal pregnancy discrimination cases filed. In 2017, that number rose to just over 300. 2018 and 2019 saw small, but steady increases. But in 2020, the number of cases fell just short of 400.
This year continues the trend, with Bloomberg Law projecting an end-of-year total that could exceed 400 cases and set a new record. These increases are curious for at least two reasons.
The first reason concerns the declining birth rates in the United States. In 2014, there was a slight increase in the birth rate. But the National Center for Health Statistics reported that since then, the birth rate has been declining by an average of 2% per year.
In 2020, there were about 3.6 million provisional births in the United States. This was a 4% drop from 2019 and the lowest number of birth since 1979. With fewer women giving birth, it’s logical to presume that there are fewer pregnant workers and therefore, fewer pregnancy discrimination lawsuits.
The second reason is procedural. In March 2020, the U.S. Equal Employment Opportunity Commission (EEOC) temporarily stopped automatically issuing a Notice of Right to Sue after they completed an investigation into an employee’s claim of workplace discrimination. In August 2020, the EEOC resumed sending out these notices without first requiring a formal request.
This makes 2020’s federal pregnancy discrimination lawsuit numbers even more surprising. Generally speaking, an employee who claims to be a victim of unlawful discrimination under federal law cannot sue an employer in civil court until they receive the Notice of Right to Sue from the EEOC. So for a five-month period, some would-be plaintiffs did not file their employment discrimination lawsuits.
Why Are There More Federal Pregnancy Discrimination Lawsuits?
The steady rise in pregnancy discrimination litigation likely has several contributing factors.
First, pregnant workers have been especially vulnerable to discrimination during tough economic times. Because of their need for parental leave and to make use of employer-provided health insurance benefits, pregnant employees tend to be more expensive for an employer than an employee who isn’t pregnant.
Second, during hard economic times, like a recession or a global pandemic, it’s more difficult to find a new job after losing your old one. When someone is unemployed, they are sometimes more motivated to sue a former employer. This could be because they have more available time, but it can also be because the economic harm from lost wages will be much larger than if they quickly found a new job.
Third, the road to the courthouse is often paved with good intentions. When the coronavirus pandemic first arrived, medical experts had no idea if pregnant women were at higher risk of getting infected, having severe symptoms, or what the virus could do to the unborn baby. So some employers, in an attempt to protect their pregnant employees, may have fired or reassigned them.
Fourth, when the EEOC resumed issuing Notices of Right to Sue in August 2020, there would have been a glut of them. So there would have been a few months where there were more notices sent out over a relatively short period of time. Keep in mind that individuals have just 90 days to file suit once they receive their Notice of Right to Sue.
Fifth, federal law concerning occupational accommodations for pregnant employees isn’t the most straightforward. Under current federal law, a pregnant worker does not automatically have a legal right to an accommodation for being pregnant. However, if the employer offers accommodations to similarly situated non-pregnant workers, only then would the pregnant employer be legally obligated to offer comparable accommodations to pregnant workers.
While workplace pregnancy discrimination is illegal in all states (and Washington, DC.), only about 30 states have laws that require covered employers to provide reasonable accommodations to pregnant workers.
Not all of these reasons explain the rising pregnancy discrimination lawsuits in federal court. That’s because the trend started years before the coronavirus hit. But many workplaces aren’t the most understanding of the needs of pregnant workers, with or without a global pandemic.
Why This Trend May Continue
Unfortunately, the increasing number of federal pregnancy discrimination suits will likely continue. One of the biggest reasons is the coronavirus.
With the arrival of the Delta variant and vaccine hesitancy, the pandemic may remain for the foreseeable future. It’s even possible that protective measures may go back into effect, such as social distancing, wearing masks and businesses limiting their operations.
Businesses will also have enough trouble trying to survive the Delta variant and a resurgence of infections. So when there are employees to terminate or accommodation requests from employees, pregnant workers are prime targets to be singled out.
Even if the coronavirus magically disappeared tomorrow, pregnant workers still face plenty of employment challenges. For example, there’s the gender pay gap, where progress has been agonizingly slow.
We also discussed some of these challenges earlier in this article, with many of them existing before the arrival of the coronavirus. One of the biggest challenges is the fact that pregnant employees are not always entitled to reasonable accommodations. But there’s hope that a new law can change that.
The Pregnant Workers Fairness Act
The Pregnant Workers Fairness Act (PWFA) is a proposed bill that would give eligible pregnant employees the right to reasonable accommodations due to their pregnancy, childbirth or a related medical condition.
The PWFA would have many similarities to the Americans with Disabilities Act of 1990 (ADA). The ADA requires employers to give an otherwise qualified worker with an ADA-recognized disability the right to a workplace accommodation as long as it doesn’t place an undue hardship on the employer. With the PWFA, pregnant employees would also enjoy this right.
The PWFA passed the House of Representatives on May 14, 2021 by a vote of 315-101. It’s unclear if it will pass the Senate. But if it does, it’s almost guaranteed that President Biden will sign it into law.
The Bottom Line
Given how pregnant workers are typically treated by their employers, it’s no surprise that there are pregnancy discrimination court cases. And with the potential confusion concerning a pregnant worker’s right to reasonable accommodations as well as the presence of the coronavirus, this upward trend is expected to continue. However, the Pregnant Workers Fairness Act has a chance to slow this trend by giving pregnant workers the legal right to reasonable workplace accommodations.
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