Earlier this May, ABC’s 20/20 aired
a program hosted by John Stossel intended to take a controversial look
at issues ranging from the preservation of endangered species to pregnancy
discrimination, titled "You Can’t Even Talk About It." The segment on pregnancy discrimination, which asks, "Should companies fire women
for getting pregnant?", begins ominously: "A woman at your office
is pregnant. She’s going to miss some work and cost the company money.
So is the company free to pay her less or even fire her?" Stossel’s
logic sounds reasonable, even tempting, right? Well, no.
Stossel bemoans the fact that, thanks
to the Pregnancy
Discrimination Act (PDA),
today employers are warned that you can’t even ask in a job interview,
"Are you pregnant?" or "Might you start a family?" (The PDA
holds that discrimination
on the basis of pregnancy, childbirth or related medical conditions
constitutes unlawful sex discrimination under Title VII,
that women affected by pregnancy or related conditions must be treated
in the same manner as other applicants or employees with similar abilities
Stossel then interviews Carrie Lukas,
the Vice President of Policy and Economics for the Independent Women’s Forum, who believes that employers should be able
to fire women for becoming pregnant. (Curiously, Stossel fails to mention
that the IWF is an ultra-conservative organization which, for instance, takes the position that
Title IX has institutionalized discrimination against men.) Lukas explains that she is taking her third
maternity leave in four years; it is her position that "if my employer
decides they no longer want me as an employee, then it should be their
right to fire me."
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Stossel’s and Lukas’s arguments appear
to be based on two flawed arguments: One, that pregnant women impose
undue costs on employers, and two, that anti-discrimination laws (presumably
all types – discrimination based on race, ethnicity, religious beliefs,
gender, sexual orientation, disability) actually work to harm people
falling in those protected classes.
The first argument is made by both
Stossel and Lukas. Lukas claims that her colleagues pick up her "slack"
when she’s at a pregnancy-related doctor’s appointment. Stossel
asserts that companies should be free to pay employees what they think
an employee is "worth" – which is apparently less as a pregnant
woman. This line of thinking singles out pregnant women in a way that
treats them unfairly compared to employees with temporary illnesses
or medical conditions. Pursuant to the PDA, if
an employee is temporarily unable to perform her job because of her
pregnancy, the employer must treat her the same as any other temporarily
disabled employee. Thus,
the PDA merely requires employers put pregnant employees on equal footing
as other employees with temporary disabilities – for example, if a coworker
with a broken leg is given less physically stressful work while injured,
the employer must offer a pregnant employee similarly easier duties
The second argument is purportedly
made out of concern for women. Stossel states that the PDA creates problems
for women because, according to him, once Congress decides some group
deserves "special protection," employers simply refuse to hire persons
in those classes. And, Lukas claims that because of the PDA "all of
a sudden a potential employer is looking at me and thinking, she just
might turn around and sue us. That makes it less likely that I’m going
to get hired." So, because of the PDA, women (regardless of intention
to become pregnant) in the workforce are walking, talking "lawsuit
bombs," if you believe Stossel.
Stossel says that Congress was wrong
to think that the PDA would end pregnancy discrimination, and cites
the many lawsuits brought pursuant to it to support his claim. But this
is backwards thinking – lawsuits were brought because the new law
offered pregnant women who were discriminated against protection.
Yes, John, pregnancy
discrimination lawsuits are on the rise – because
employers continue to discriminate against women based on pregnancy!
With our country’s history of racism, sexism, and homophobia, how
can we just expect employers to "do the right thing"? The government
intervenes to protect "discrete and insular minorities," as the famous footnote in
Carolene Products suggested,
as it should. Congress intervened to address racial and sex-based discrimination
in the workplace with Title VII.
And because pregnancy discrimination is intimately tied with sexism
and stereotypes about women and harms working families, it is no wonder
that Congress enacted the PDA.
In a different
segment on the same topic,
Stossel interviews Debra Ness, president of the National Partnership for
Women and Families, and,
in what appeared to be an ill-advised "slippery slope"-type argument,
likened pregnancy discrimination to discriminating against "stupid,
dumb, and lazy people." Stossel persisted with his argument that discrimination
laws hurt the very people they’re meant to protect, saying that an
employer can hire a man-who is evidently not a lawsuit "bomb" – but
if the employer chooses to hire a woman, "I’m stuck, I can never
fire her." Stossel then mused, "I discriminate all the time…isn’t that a part of life? The question is where you draw the line,
where it’s legal, where it’s not?" Well, for starters, it’s
illegal when it’s not based on any relevant aspect of job performance.
So, what is Lukas’s and Stossel’s
proposed solution? An idyllic world, it would seem. Lukas claims that
"lots of employers would hire pregnant women" (even though according
to her they impose costs and create more work for other employees).
She maintains that the best way to prevent discrimination is by implementing
a free market system – that because discrimination is a "bad business
practice," people won’t want to work for companies that discriminate,
and the system will just magically regulate itself. However, her argument
is based on several tenuous positions: all or most women entering the
workforce wish to become pregnant; women who become pregnant become
a liability to their employers; in a free market, employers wouldn’t
engage in pregnancy discrimination anyways, because it’s "the right
thing to do." I am not so confident. Anti-discrimination laws are
needed precisely because the system does not regulate itself. The "sharing
of responsibilities" at her workplace due to her pregnancy-related
absences that Lukas decries is exactly what happens in numerous other
circumstances that flexible workplaces – when employees are ill or have
ill family members, for instance – manage without complaint. Treating
pregnancy differently simply reinforces sexist and stereotypical notions
about women in the workplace.
This post first appeared on RepoRepro, the blog of Law Students for Reproductive Justice.