More women are in the workforce than in the past. Since about 1996, about three of every four eligible women aged 25 to 54 has been working, as opposed to 1 in 2 in 1970.
The share of women giving birth for the first time who were working during their pregnancy increased from less than half in the late 1960s to almost 70% in 2001-2005.
Not every employer is welcoming of women in the workforce who want to bear children. Among first-time mothers, 4% reported losing their jobs while pregnant or after giving birth as of the early 2000s. This rose to five percent in 2006-2008, along with 22% who reported having quit their jobs. The number of women who worked during their pregnancy has actually fallen since 1990, which may indicate that it has become more difficult to work around pregnancy and childbirth.
In 1978, the Pregnancy Discrimination Act prohibited firing women or declining to hire women on the basis of past or future pregnancy or childbirth. This amendment to the Civil Rights Act of 1964 makes clear that a woman cannot be fired, demoted, or denied a benefit or opportunity because she is a woman, or because of pregnancy, childbirth, or related medical conditions. As a result, women who are pregnant or who have given birth must be “treated the same for all employment-related purposes…” Furthermore, the Family and Medical Leave Act makes it unlawful for an employer to deny an employee a job or job benefit that the employee would have had if he or she had not taken a family or medical leave. Some states such as New York State offer additional legal protections.
In 1989, the “mommy track” controversy erupted with articles in The New York Times, Business Week, and Newsweek, and television reports on ABC’s Nightline and elsewhere. Elizabeth Ehrlich observed that pregnancy discrimination may be more likely to occur because women were only 2% of the top leadership at large public companies. Ruth-Bader Ginsburg, later Supreme Court Justice Ginsburg, co-wrote an article noting that the “mommy track” could be a “lower tier” of work with fewer chances for advancement. More recently, Lisa Belkin of The New York Times Parenting Blog links the “mommy track” to the “glass ceiling” that limits opportunities for promotions. Gene Sperling cites research from the National Parenting Association which shows that about half of women earning more than $100,000 per year in their early 40s do not have children, as opposed to one in five women in the general population who do not earn this much.
The controversy has not gone away since 1989, as pregnancy discrimination cases continue to be publicly reported. Wal-Mart paid $220,000 to settle claims at the US Equal Employment Opportunity Commission (EEOC) relating to pregnancy discrimination. A maternity store called Mothers Work, Inc. had to pay nearly twice that to settle a pregnancy discrimination and retaliation charge. A class of women and the EEOC persuaded Verizon to pay nearly $50 million to settle a pregnancy bias case.
Restaurant workers frequently make pregnancy discrimination charges. Locations of Chick-fil-A and other restaurant chains have entered into settlements. In 2014, a jury awarded $550,000 to a former employee who was terminated after becoming pregnant, and Chipotle announced that the company did not intend to appeal the decision.
When women complain of pregnancy-related discrimination, employers often state that they were simply downsizing, or fired a woman for misconduct or poor work. In such a situation, a lawyer may be able to discover factual support for a woman’s story that the employer’s supposed reason was really a cover-up for illegal discrimination. There may be an indication that someone involved in the decision to deny a woman her job or a promotion expressed doubt that she would really return to work after a medical leave. For example, a court might consider remarks by a decision maker that a woman was on the “mommy track” (even if made to a third party) as support for a discrimination case.
When the law does its job, mothers in difficult workplaces can get off the “mommy track,” and back on the track to advancement and a successful career. If you or someone you know is facing pregnancy discrimination or any sort of retaliation for taking family or medical leave, contact us by phone at (516) 873-9550 or email us for a free, confidential case evaluation. Know your rights and protect your career from unlawful discrimination.