Pregnancy discrimination

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Pregnancy discrimination occurs when expectant people are fired, not hired, or otherwise discriminated against due to their pregnancy or intention to become pregnant. Common forms of pregnancy discrimination include not being hired due to visible pregnancy or likelihood of becoming pregnant, being fired after informing an employer of one’s pregnancy, being fired after maternity leave, and receiving a pay dock due to pregnancy.

Motives[edit]

Employers discriminate on the grounds of pregnancy for a number of reasons:

  • prejudices against working women and mothers
  • fear of loss of productivity due to the absence of an employee
  • insufficient resources to support temporary employees or provide overtime pay for other employees to fulfill the duties during leave
  • belief that the employee will require too many accommodations even after her return.

United States[edit]

In the United States, since 1978, employers are legally bound to provide the same insurance, leave pay, and additional support that would be bestowed upon any employee with medical leave or disability. This only applies to companies with 15 or more employees (including part-time and temporary workers).

With more than 70% of women with children in the work force, pregnancy discrimination is the fastest growing type of discrimination in the U.S., and in 2006 represented approximately 6.5% of all discrimination claims filed. The U.S. Equal Employment Opportunity Commission mediates claims between employees and employers. In 2006, the EEOC handled 4,901 claims with an eventual monetary pay-out by various organizations totaling $10.4 million.

Legislation[edit]

In 1978, the U.S. Congress passed the Pregnancy Discrimination Act (P.L. 95-555), an amendment to the sex discrimination section of the Civil Rights Act of 1964.

In 2002, California's Paid Family Leave (PFL) insurance program, also known as the Family Temporary Disability Insurance (FTDI) program, extended unemployment disability compensation to cover individuals who take time off work to bond with a new minor child. PFL covers employees who take time off to bond with their own child or their registered domestic partner's child, or a child placed for adoption or foster-care with them or their domestic partner.

Historical perspective[edit]

The Pregnancy Discrimination Act of 1978 and Family and Medical Leave Act are rooted in several major court decisions leading up to them.

In the 1908 case Muller v. Oregon the Supreme Court upheld a decision limiting women to 10 hour workdays based on the idea that "performance of maternal functions" made women inherently incapable of the same work that men did. In the 1950s and 1960s laws in several states prohibited women from working and banned their hiring for some length of time before and after delivery. In 1971 Reed v. Reed became the first Supreme Court decision to invoke the Equal Protection Clause of the 14th Amendment to protect women from discrimination on the basis of sex.

In 1970 and 1971 the rights of pregnant schoolteachers were called into question. Many schoolteachers were forced to take unpaid maternity leaves around the fourth to sixth month of pregnancy for the reasons that it was potentially dangerous for the mother or child if the woman continued to work, she might not be able to focus on teaching, and students would be distracted by the visible signs of pregnancy.[1] In 1974 in Cleveland Board of Education v. LaFleur, the Supreme Court declared mandatory unpaid leave policies unconstitutional[2] This was a big step towards gaining equal rights for women in the workforce.

Two other major cases in the 70s appear to be directly responsible for the Pregnancy Discrimination Act. The first, Geduldig v. Aiello (1974), ruled that the exclusion of medical benefits for pregnant women in California by the California State Disability Insurance program was non-discriminatory.

“While it is true that only women can become pregnant…the [California State Disability Insurance] program divides potential recipients into two groups- pregnant women and nonpregnant persons. While the first group is exclusively female, the second group includes members of both sexes. The fiscal and actuarial benefits of the program thus accrue to members of both sexes.”

In 1976 General Electric v. Gilbert, 429 U.S. 125, set a similar precedent for private insurance through an employer. The uproar from these two decisions appears to have directly fueled the creation of the Pregnancy Discrimination Act by Congress.

In 2009 the Supreme Court again addressed Pregnancy discrimination with their ruling in AT&T Corp. v. Hulteen that held that maternity leave taken before the passage of the 1978 Pregnancy Discrimination Act cannot be considered in calculating employee pension benefits, therefore essentially implying that the Pregnancy Discrimination Act is not retroactive.

In 2014, a bill was passed in hopes of preventing discrimination.[3] It has yet to become a federal law.

European Union[edit]

The European Union regards less favourable treatment on grounds of pregnancy as unlawful, and the same thing as discrimination on grounds of sex (contrasting to the American case of Geduldig v. Aiello and consistent with the American approach in the Pregnancy Discrimination Act of 1978).

The European Court of Justice decided in Dekker v Stichting Vormingscentrum Voor Jone Volwassen (VJV-Centrum) Plus[4] that pregnancy discrimination was sex discrimination without any requirement for comparing this unfavourable treatment to a man. It reaffirmed this position in Webb v EMO Air Cargo (No 2)[5] where a woman had been dismissed because she had attempted to take pregnancy leave, but had not disclosed this to her employer when hired. As well as a dismissal, a failure to renew a fixed term contract may also be discrimination.[6] Furthermore, during any period of pregnancy or maternity leave there may be no detriment or dismissal in connection with a period of sickness.[7] A woman is also allowed to shorten her maternity leave and return to work when she becomes pregnant again to get the second period of pregnancy, even though she is not fully able to carry out all her normal job functions.[8]

It is also clear that women who are pregnant are protected at job interviews. In the Tele Danmark case[9] a woman has been held to be not at fault for not telling an employer she was pregnant while being interviewed for a job, despite knowing she was pregnant.

Canada[edit]

In Canada, pregnancy discrimination is considered a violation of sex-discrimination laws and will be treated as such.[10]

Other[edit]

Mexico and Japan have laws to combat pregnancy discrimination.

Japan[edit]

In Japan, Labor Standards Act (Act No. 49 of 1947)[11] provides that an employer must provide an expectant mother worker with maternity leave for 6 weeks(14 weeks for multiple pregnancy beyond twins) before her child birth and 8 weeks after the child birth. Article 9 of Equal Employment Opportunity Act between Men and Women (Act No. 113 of July 1, 1972) prohibits unequal employment condition for the reasons of marriage, pregnancy, maternity leave provided in Article 65 of Labor Standards Act and other reasons related childbirth. These unequal employment conditions includes retirement, dismissal.[12] In addition, Act on the Welfare of Workers Who Take Care of Children or Other Family Members Including Child Care and Family Care Leave (Act No. 76 of 1991)[13] provides that employees has the right to take unpaid child care leave for one year, and Article 10 prohibits for an employer to dismiss or disadvantageously treat a worker who have taken or is about to take Child Care Leave. Although Maternity Leave and Child Care Leave are basically unpaid leave, Basic Childcare Leave Benefits are provided based on Employment Insurance Act[14] during Child Care Leave and Maternity Allowance and Lump-sum Childbirth Allowance are given based on Health Insurance Act (Act No.70 of 1922).[15] Basic Childcare Leave Benefit is 50% of the employee's wage, and Maternity Allowance is two thirds of the wage.As of 2013, Lump-sum Childcare allowance is \420,000 (US$4,075).

Hong Kong[edit]

In Hong Kong, it is a criminal offence if an employer discriminates against a pregnant employee if the employee has been hired under a continuous contract.[16] An employer who contravenes this can be liable to prosecution and, on conviction, fined HK$100,000. The employer would also be required to pay the employee's wages in lieu of notice, a further sum equivalent to one month's wages as compensation, and 10-weeks' maternity leave pay.[17] Pregnant workers who feel they have been discriminated against because of their pregnancy are also protected by the Sex Discrimination Ordinance.[18] Despite the law, women may still feel pressured to leave the workforce due to stress.[19]

Taiwan[edit]

In Taiwan, pregnancy discrimination is considered a violation of sex-discrimination laws and are treated as such if an employer is found guilty. [20] Despite the laws, discrimination against women and especially pregnant women is common place as it is rarely reported and discrimination is tolerated.

See also[edit]

Notes[edit]

  1. ^ summary of Rosa Weiner's "Pregnant Teachers in the Classroom" (1987) by the Georgetown Law Library
  2. ^ Congress and the Nation, s.vv. “1798,” “Pregnancy Disability.” Vol. V, 1977-1980, p. 796
  3. ^ "Bill Passed". Retrieved 7 July 2014. 
  4. ^ [1990] ECR I-3941
  5. ^ [1994] ECR I-3567 (C-32/93)
  6. ^ Jimenez Melgar v Ayuntamiento de Los Barrios [2001] EC I-06915 (C-438/99)
  7. ^ Brown v Rentokil Ltd [1998] ECR I-04185 (C-394/96)
  8. ^ Busch v Klinikum Neustadt [2003] ECR I-020341 (C-109/00)
  9. ^ Tele Danmark A/S v Handels-Og Kontorfunktionaerernes Forbund I Danmark (HK) acting on bhalf of Brandt-Nielsen [2001] IRLR 853, [2001] ECR I-06693 (C-109/00)
  10. ^ "Pregnancy Law Canasa". Retrieved 7 July 2014. 
  11. ^ Japanese Law Translation - [Law text] - Guidelines for the Measures, etc. concerning the Employment Management Improvement, etc. for Part-Time Workers to Be Taken by Busin...
  12. ^ http://www.mhlw.go.jp/general/seido/koyou/danjokintou/dl/kt-e.pdf
  13. ^ Japanese Law Translation - [Law text] - Act on the Welfare of Workers Who Take Care of Children or Other Family Members Including Child Care and Family Care Leave
  14. ^ Japanese Law Translation - [Law text] - Guidelines for the Measures, etc. concerning the Employment Management Improvement, etc. for Part-Time Workers to Be Taken by Busin...
  15. ^ http://www.mhlw.go.jp/english/wp/wp-hw6/dl/02e.pdf
  16. ^ "Pregnancy Act Hong Kong". Retrieved 7 July 2014. 
  17. ^ "Pregnancy Act Hong Kong". Retrieved 7 July 2014. 
  18. ^ "Pregnancy Act Hong Kong". Retrieved 7 July 2014. 
  19. ^ "Pregnancy Act Hong Kong". Retrieved 7 July 2014. 
  20. ^ "Pregnancy Law Taiwan". Retrieved 7 July 2014. 

External links[edit]