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7 Cases of Pregnancy Discrimination in the Workplace

When Congress enacted the Pregnancy Discrimination Act of 1978 , it amended Title VII of the Civil Rights Act of 1964 and made it unlawful for employers to take adverse employment actions against pregnant employees. Under the Act, a woman cannot be rejected for a job or promotion, forced to take leave, given lesser assignments, or fired because of the pregnancy.

Amendments were added to the Americans with Disabilities Act (ADA) in 2008 to require that employers provide necessary accommodations to pregnant women with certain pregnancy-related conditions that could qualify as disabilities. While pregnancy is not considered a disability under the ADA, conditions related to pregnancy are. Many pregnancy-related conditions may now qualify as disabilities , such as fatigue and nausea, as long as the impairment “substantially limits a major life activity,” according to the ADA. The EEOC believes employers cannot retaliate against workers who become pregnant. Employers also must accommodate these employees to the best of their abilities.

Many state and local laws go farther than federal law in providing pregnant workers with protection. Twenty-two states and the District of Columbia now have laws that grant pregnant employees the right to reasonable accommodations while on the job.

However, pregnancy discrimination remains widespread. More than 41,000 pregnancy discrimination charges were filed with the Equal Employment Opportunity Commission (EEOC) between 2010 and 2022. Although women from all economic classes are subject to pregnancy discrimination, low-income women tend to pay a higher price, especially women who perform physically demanding jobs.

The Society for Human Resources Management reports two-thirds of men and one-third of women do not take advantage of their employers’ parental leave policies. This may be because they are afraid they will be punished for doing so or they cannot afford to take that much time off of work.

Pregnancy Discrimination Lawsuits

Gender discrimination against attorneys.

Attorneys at Sanford Heisler Sharp LLP filed a $100 million class-action employment discrimination lawsuit against Morrison & Foerster, one of the largest law firms in the United States, in the US District Court for the Northern District of California.

The Complaint was filed in April 2018 on behalf of three female Morrison & Foerster associates. In January 2019, three additional plaintiffs were added to the lawsuit. The lawsuit alleges the firm practices systemic gender discrimination against its female lawyers, especially those who have children or are pregnant. In the plaintiffs’ experience, Morrison & Foerster’s female attorneys are continually denied opportunities for promotion and higher pay after pregnancy, childbirth, and maternity leave.

The plaintiffs each took maternity leave once they became pregnant and gave birth. When they returned to work, they were denied anticipated promotions, as well as the corresponding pay increase. The female lawyers’ hourly billing rates increased as though they had been promoted, however.

The class action seeks all equitable and legal relief available under California state and federal anti-discrimination, retaliation statutes, and equal pay. The plaintiffs also seek monetary and injunctive relief so Morrison & Foerster cannot continue to discriminate going forward.

High-Profile Pregnancy Discrimination

A former Netflix manager, Tania Zarak, sued the company for pregnancy discrimination in April 2019. Ms. Zarak alleged that, after she told her supervisor that she was pregnant, he removed her from projects and stopped inviting her to meetings. She reported the behavior changes to human resources and was fired.

Discrimination Case Settled for $82,000

LA Louisanne, Inc., a Los Angeles restaurant and night club, violated Title VII of the Civil Rights Act of 1964 and Pregnancy Discrimination Act of 1978 when it reduced a server’s hours after finding out she was pregnant. According to the lawsuit , the server was removed from the work schedule entirely after she gave birth. The restaurant paid $82,500 in July 2018 to settle the EEOC case.

In addition to the settlement, the restaurant must review and revise its discrimination and harassment policies. The EEOC will monitor the restaurant’s compliance with mandatory discrimination and harassment training for all of its employees.

Protection Under the Congressional Accountability Act

Texas Representative Henry Cuellar was accused of firing his acting chief of staff in October 2018 after she disclosed her pregnancy. If true, the firing would be a violation of federal law.

Although Capitol Hill employees are not protected by all federal statutes regarding employment, they are protected by the Congressional Accountability Act (CAA). The CAA’s reporting process has been widely criticized, however. It requires mandatory counseling and a 30-day cooling-off period. If neither of those rectify the situation, the aggrieved employee can request an administrative proceeding in front of a hearing officer or file a case in federal district court.

Representative Cuellar’s office stated: “[T]he office values its employees and conducts all personnel matters in compliance with the Congressional Accountability Act and applicable House Rules.”

Caregiver and Gender Discrimination

Much of the conversation regarding discrimination against women in the workplace centers around pregnancy discrimination. But a recent lawsuit brings to light discrimination against female workers after they give birth.

Nikki Columbus, a former editor at Parkett magazine, sued MoMA PS1 on the grounds of caregiver and gender discrimination because the museum rescinded their job offer to her after learning she had a baby between the time they offered her the job and the time she was supposed to begin working.

Ms. Columbus’s attorney explains, “This is a blatant example of the discrimination women face in the workplace. Protecting pregnant workers from discrimination matters little if employers can turn around and fire (or refuse to hire) women once they give birth. Just like sexual harassment, this type of discrimination prevents women’s advancement in the workplace and keeps women at an unequal position in the workforce.”

After Ms. Columbus received the job offer from MoMA PS1, she made arrangements with the museum to transition out of her role at Parkett. She requested the ability to work from home for a few weeks because she had just given birth to her child. Her contact at the museum asked, “Why didn’t you tell me this two months ago?”

A few days later, the museum wrote to Ms. Columbus and stated they were unable to meet her requested terms. When Ms. Columbus stated she still wanted the job, she was told that she “would not be able to perform the job as it was structured” and the offer was “no longer active.”

The complaint alleges: “Nothing about the position changed. Nothing about Ms. Columbus’s qualifications for the job changed. The only thing that changed was [MoMA PS1’s] awareness of Ms. Columbus’s new baby.”

$80,000 Pregnancy Discrimination Settlement

A 28-year-old job applicant filed a claim of pregnancy discrimination with the EEOC and received a settlement of $80,000 in May 2019.

The claimant applied for a job at Scribe-X Northwest, a medical documentation service. She passed the pre-employment screening tests and received a job offer. When she told the company she was pregnant, Scribe-X Northwest rescinded her offer. The CEO told her that she should have notified the company that she was pregnant earlier because they would not have hired her if they knew she was expecting a child.

In addition to the monetary settlement, Scribe-X Northwest must implement policies explicitly providing employees knowledge of their rights, train employees and management on anti-discrimination topics, and report to the EEOC on their continued compliance with the settlement.

Pregnancy and Sex Discrimination

There is limited case law on whether a male can bring a claim of employment discrimination under the Pregnancy Discrimination Act based on his partner’s pregnancy.

Recently, a Mississippi man committed suicide after being fired for accompanying his high-risk pregnancy wife to a pregnancy-related appointment. His estate filed a complaint against his employer. His estate alleged his termination was due to his sex and his wife’s pregnancy.

A 2007 case held that in order for a male to properly bring an employment discrimination claim based on pregnancy, he must allege that he was discriminated against because of his sex. The estate argued that he was “treated less favorably than male employees whose wives were not pregnant.”

However, the court found that he must allege that he was fired because of his partner’s pregnancy and that a female would not have been fired because of her partner’s pregnancy.

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Run, Baby, Run: Federal Court (Correctly) Sends Pregnancy Discrimination Case to Trial

Can an employer require a pregnant employee to run 1.5 miles as part of a bi-annual fitness qualification program? Sure. But what if the employer refuses to excuse the pregnant employee and admits the denial is because she’s pregnant? Or what if the employer refuses to excuse the pregnant employee while excusing other employees with comparable levels of disability from a different source? Well, now we’re in unlawful discrimination territory. A federal district court’s recent ruling in Thomas v. Florida Parishes Juvenile Justice Commission reinforces the contours of the Pregnancy Discrimination Act of 1978 and the Supreme Court’s interpretation of it.

Running on Empty

Brandi Thomas had worked as an officer in a juvenile detention center for almost a decade when she became pregnant. On April 1, 2016, she informed the human resources director, Norleidy Hernandez, at Florida Parishes Juvenile Justice Commission (“the Commission”), which operates the facility at which she works, of her pregnancy. The detention center, which is run much like an adult prison, is staffed by Juvenile Detention Staff (JDS) Officers, who must complete bi-annual physical fitness testing. The test includes push-ups, sit-ups, bench press, a flexibility test, and a 1.5 mile timed run—think the presidential fitness challenge for grown-ups.

Thomas was six weeks pregnant when she told Hernandez about her condition. Thomas asked to take her fitness test before the required date because it would only get harder to complete later in pregnancy. That same afternoon, she successfully completed every component but the run, which she was told to attempt on the regularly scheduled date of April 21, 2016. Thomas attempted the run on that day, but did not complete it within the requisite number of minutes. Shortly afterwards, she felt ill and went to the emergency room; she was diagnosed with a placental bleed and told to spend a few days in bed. (Thomas was right to request an accommodation given her doctor’s orders—and her employer was wrong to deny it. But running is not inherently incompatible with pregnancy, nor prohibited for most pregnant women. In fact, the largest ever study of running showed that running during pregnancy is generally safe .)

After that incident, Thomas was placed on light duty at work for two weeks, and her doctor submitted a note stating that she was limited to “light activity” due to pregnancy complications. Her employer did not actually have any light duty work for her to do, however, so she had to use personal leave time instead. Her run at been rescheduled for a day during that leave period. She returned to work with another doctor’s note advising that she could work without restriction. Her supervisor, Ashton Magee, notified her that she would have to again attempt the 1.5-mile run. Now in her second trimester, Thomas gave McGee another note from her doctor, which explained that she was “medically advised to avoid extended running” because of a “high risk pregnancy.” Magee told Thomas that she would have to perform the run anyway—and told her that she should not even turn in the note to human resources. According to Magee, the detention center had a “custom” of not excusing pregnant women from the run even with a doctor’s note, even though it would excuse employees with physical limitations due to other causes.

Thomas again attempted the run. She did not finish in the time required and again ended up in the emergency, where she was treated for a back injury. A few weeks later, Thomas was given a light-duty assignment, which she accepted and performed until being put on bed rest for her third trimester. She had her baby in November 2016 and returned to the facility the following September; she continues to work there.

Thomas’s Pregnancy Discrimination Claim

Thomas filed a lawsuit in which she alleged that the Commission engaged in pregnancy discrimination in violation of Title VII, a federal anti-discrimination law, and Louisiana law. The crux of her claim is that it was discriminatory to force her to attempt the timed run while pregnant, with a doctor’s note documenting her pregnancy-related disability, when the Commission had excused other employees with physical limitations from the same requirement. To understand why that comparison is so important, we need to consider the contours of pregnancy discrimination law.

The heart of federal law on this topic is the Pregnancy Discrimination Act (PDA) of 1978. This law was passed in direct response to a bizarre Supreme Court ruling in General Electric v. Gilbert , in which it held that pregnancy discrimination was not a form of sex discrimination under Title VII of the Civil Rights Act of 1964. The opinion tracked an equally strange ruling from two years earlier, in which the Court had said that pregnancy discrimination was not a form of sex discrimination under the Equal Protection Clause. In both opinions, the Court seemed completely unmoved by the reality that pregnancy only happens to women and that many of our stereotypes, biases, and attitudes about pregnant workers are inextricably intertwined with our stereotypes, biases, and attitudes about working women more generally. The Court, instead, gave public and private employers a license to single out pregnant women for adverse treatment, during a time when workers more generally were experiencing an expansion in wages and benefits.

Congress took direct aim at the Supreme Court’s views of pregnancy and gender—as well as at the Gilbert opinion more specifically. The first clause of the PDA amends Title VII to provide that discrimination on the basis of “pregnancy, childbirth, or related medical conditions” is unlawful as a form of sex discrimination under Title VII—expressly repudiating both the Court’s reasoning and its holding in Gilbert . The second clause goes further and directs that pregnant women have the right to be treated the same as others who are “similar in their ability or inability to work,” but “not so affected” by pregnancy. (Louisiana law, which Thomas also cited in her lawsuit, is more or less the same as federal law with respect to pregnancy discrimination.)

The Meaning of the PDA’s Second Clause and Young v. UPS

In a nutshell, the PDA’s two clauses capture two basic rights—the right not to be singled out for adverse treatment because of pregnancy (clause 1) and the right to be treated at least as well as other temporarily disabled employees (clause 2). Neither clause gives pregnant women any absolute right to accommodation of pregnancy-related disability, which is why the Commission’s treatment of non-pregnant workers with limitations is the crux of Thomas’s claim.

The meaning of the second clause of the PDA has been hard for courts to pin down. One recurring question was about the appropriate comparison group. Many employers, for example, had policies that permitted accommodations for workers injured on the job but not for workers with disability from any other cause. Women with pregnancy-related disability always fell in the latter group—and were thus denied accommodations like light-duty assignments, even though the employer was making those accommodations available to workers with comparable levels of disability. Employers defended such policies as “pregnancy-blind”—and a surprising number of federal courts accepted that as a sufficient defense. What these employers and courts missed was that this approach flatly undermined Congress’s intent to give pregnant workers access to the same types of accommodations and benefits available to others. Congress wanted employers to stop treatment pregnancy as “special,” a stance that typically led to pregnant workers’ being treated worse rather than better than others.

In 2015, the Supreme Court decided Young v. UPS , in which it resolved some questions about the proper interpretation of the second clause. Peggy Young had argued that UPS’s policy was discriminatory because it permitted light-duty accommodations to some workers—potentially many—who had similar types of work restrictions, but did not allow the same accommodation for her. UPS, on the other hand, argued that no policy could violate the PDA if it was pregnancy-neutral—that is, if it did not single out pregnancy as the only condition that did not merit some particular accommodation. In the majority opinion, Justice Breyer rejected the position of each party and settled on a rule somewhere in the middle that seemed to honor the text and spirit of the PDA.

The Court’s approach to the second clause makes use of the so-called McDonnell-Douglas test, which is used to smoke out discriminatory intent by employers accused of unlawful disparate treatment. As adapted for the pregnancy accommodation context, a pregnant worker can establish a prima facie case of pregnancy discrimination simply by showing that “she belongs to the protected class, that she sought accommodation, that the employer did not accommodate her, and that the employer did accommodate others ‘similar in their ability or inability to work.’” Upon establishment of the prima facie case, the burden of production then shifts to the employer, who must articulate a legitimate, non-discriminatory reason for its differential treatment. Here, the Court interposes another rule to protect pregnancy discrimination plaintiffs. “[C]onsistent with the Act’s basic objective, that reason normally cannot consist simply of a claim that it is more expensive or less convenient to add pregnant women to the category of those (‘similar in their ability or inability to work’) whom the employer accommodates.” Finally, if the employer has articulated a sufficient reason, the plaintiff has the opportunity nonetheless to reach a jury by “providing sufficient evidence that the employer’s policies impose a significant burden on pregnant workers, and that the employer’s ‘legitimate, nondiscriminatory’ reasons are not sufficiently strong to justify the burden, but rather—when considered along with the burden imposed—give rise to an inference of intentional discrimination.”

The District Court’s Analysis of Thomas’s Claim

In Thomas’s case, the Commission moved for summary judgment on her pregnancy discrimination claim. It argued that there were no undisputed facts relevant to her claim and that the employer’s conduct did not constitute pregnancy discrimination. The district court disagreed, denying summary judgment and sending the case for trial. It did so based on two different methods—with direct evidence of pregnancy discrimination or through the McDonnell Douglas/Young proof structure.

First, the court considered whether Thomas had presented direct evidence of pregnancy discrimination. (It’s unclear, given the holding of Desert Palace v. Costa , discussed here , why the court thought such evidence was necessary, though it would certainly suffice to prove that pregnancy was “a motivating factor” in the decision.) Her supervisor, Ashton Magee, submitted an affidavit confirming Thomas’s testimony—that Magee had told her not to bother submitting a doctor’s note because the facility “did not allow pregnant employees from being excused from the Physical Fitness Test – 1.5 mile run even with a doctor’s note” but “would let other non-pregnant employees with physical limitations be excused from the 1.5 mile run with an appropriate doctor’s note.” This, in the court’s view, was direct evidence (requiring no inferences to reach the ultimate conclusion) that Thomas was refused an accommodation because of pregnancy. Direct evidence, according to this court, exists when a comment relates to the protected characteristic (pregnancy), was proximate in time to the challenged decision (denial of accommodation), was made by the individual with authority over the decision (Magee), and relates to the challenged decision (denial of accommodation because of pregnancy). In the face of direct evidence, the employer can avoid damages only by proving that the decision would have been made regardless of the “forbidden factor.”

Second, the court considered whether Thomas could also prove pregnancy discrimination through the pretext structure adapted for pregnancy in Young . There, too, she would have no trouble satisfying the threshold showing—that she was pregnant, sought an accommodation, and was denied an accommodation that was given to similarly situated workers. The employer argued that she still could not prevail at trial because she suffered no adverse employment action. But the court held that an adverse action is not required to prove actionable pregnancy discrimination under the Second Clause of the PDA. Rather, the denial of the accommodation is the disparate treatment. Because she established a prima facie case, the court held that summary judgment for the employer was not appropriate. At trial, the employer will have the opportunity to prove it had a legitimate, non-discriminatory reason for the denial (within the constraints set forth in the Young decision), and Thomas will have the opportunity to prove that any reason proffered by the employer is pretextual—masking discrimination (again, within the constraints in Young ). The evidence of pregnancy discrimination in this case is strong—certainly strong enough to warrant proceeding with a trial on the merits.

The court here was correct to deny the employer’s motion for summary judgment. The available facts suggest a strong case of pregnancy discrimination—with no hint of an explanation why. The Young decision has been helpful in forcing employers to account for their random denials of accommodations to pregnant workers. Why did this employer seem to have a policy that routinely let some restricted workers defer their fitness tests while routinely denying the same accommodation to pregnant workers? That is a question they should have to answer at trial. Brandi Thomas should win this fight because she had a medically documented reason to avoid running while pregnant—and it seems very likely that the employer would have granted her request had she had the same restriction from another cause. That’s the very essence of pregnancy discrimination.

Posted in: Civil Rights , Employment Law

Tags: Pregnancy Discrimination Act

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Edited by Barbara Stark and Joanna L. Grossman

Edited by Linda C. McClain and Joanna L. Grossman

by Joanna L. Grossman and Lawrence M. Friedman

by Katherine T. Bartlett, Deborah L. Rhode, and Joanna L. Grossman

by Joanna L. Grossman

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She sued for pregnancy discrimination. Now she’s battling Google’s army of lawyers

Chelsey Glasson alleged she had been discriminated against while pregnant and had witnessed others being treated similarly

W hen Chelsey Glasson found out she was pregnant with her second child in 2019, she did not anticipate the first three years of her new baby’s life would be overshadowed by an epic legal battle against a trillion-dollar company.

The 38-year-old sued Google , her former employer, in 2020 alleging she had been discriminated against while pregnant and witnessed others being treated similarly, and faced retaliation from her manager when she spoke up about it.

Since then, Glasson says, battling to win her case has become a nearly full-time job, one that’s pitted her against a company with a global army of lawyers at the ready. Despite being represented by attorneys in Washington and partially backed by a not-for-profit group, the American Association of University Women, she finds herself putting in grueling hours preparing for her upcoming trial this year. She spends her nights, after her two kids are asleep, discovering documents and preparing for processes such as her recent deposition in March. The fight has affected her children’s lives almost as much as her own, she says.

“Even if they don’t know what is going on exactly, they know mommy is not all there – they know that I am not always present for them,” she said of her children, who are two and four years old. “It is heartbreaking to see how this impacts not just the person who is targeted by pregnancy discrimination, but the entire family.”

Glasson’s case first gained publicity after she published a widely shared internal note, titled I’m Not Returning to Google After Maternity Leave, and Here is Why, which was eventually leaked to the public.

Chelsey then hired an attorney and, in response, Google investigated a small portion of her claims, but said it found no examples of policy violation. Glasson then filed a complaint with the Equal Employment Opportunity Commission (EEOC) in September 2019. After little movement on an EEOC investigation, she filed a lawsuit in July 2020. While many companies quickly move to resolve lawsuits, Google continues to aggressively deny Chelsey’s claims.

Glasson says her situation underscores just how much a worker stands to lose when they go toe-to-toe with one of the world’s largest tech companies.

“What’s very clear is that Google does not take action regarding discrimination,” said Glasson. “This is in large part because it is a massive organization with huge resources at its disposal to fight someone like me – it’s not at all a fair fight.”

‘Pregnancy discrimination does not get more blatant than that’: where the allegations began

Glasson’s struggle began in early 2018, after she says she overheard a director at Google criticizing a pregnant employee, and learned that the employee was being given negative feedback in her performance review after disclosing the pregnancy.

In keeping with Google’s reporting guidelines, Glasson filed a complaint with human resources alleging pregnancy discrimination against her colleague. Shortly after, she says, the director began to retaliate against her over the report, interviewing other people to replace Glasson in her role. Glasson said HR acknowledged the retaliation but refused to stop it. She asked at the company how to face her boss when the ongoing investigation was making their relationship tense and was told multiple times to find a therapist.

“When you are a victim and you are told to go to counseling, it is incredibly offensive – it’s sending a message that you’re crazy and you’re making all this up,” she said.

Several months later, Glasson then became pregnant herself and says she decided to transfer teams to escape the ongoing retaliation and harassment. But she found her new superior made negative comments about her pregnancy-related health issues, and denied her the management role she was hired into.

Glasson says that five months before her maternity leave was scheduled, her new boss told her that she would not be given any management responsibilities while she was pregnant because of concerns that her upcoming maternity leave would “stress the team” and “rock the boat”.

“Pregnancy discrimination does not get more blatant than that, and yet here they were telling me it is not happening,” she said.

Glasson also says her doctor eventually ordered her to take bed rest but that her manager encouraged her to keep working. During the investigation and ongoing fallout with her manager, Glasson was prescribed Lexapro, an antidepressant, to manage stress and was diagnosed by her obstetrician with “acute stress”.

On 7 January 2019 Glasson had to go to the hospital for a life-threatening pregnancy-related medical issue, which she believes was exacerbated by the stress, and remained there until she gave birth to her daughter on 8 March 2019 . Days later, Google asked her to leave the company in exchange for three months of her base salary.

“It was a very small amount,” she said of the payout. “Especially to be asked to leave the company with no health insurance, as I came out of the hospital with a newborn in hand, having come out of months in the hospital and healing from an emergency c-section.”

In August 2019, Glasson received a one-paragraph email in response to her complaint, filed more than a year prior, saying that it had not found evidence of pregnancy discrimination. “Thank you for raising your concerns,” the email said. This response prompted her to file the lawsuit.

In response to a request for comment about Glasson’s claims, Google said it does not comment on ongoing cases but that it takes these allegations seriously.

“Reporting misconduct takes courage and we want to provide care and support to people who raise concerns,” a Google spokesperson said. “All instances of inappropriate conduct reported to us are investigated rigorously, and we have simplified how employees can raise concerns and provided more transparency into the investigations process at Google. We work to be extremely transparent about how we handle complaints and the action we take.”

Veena Dubal, a labor law professor at UC Hastings who teaches a course in pregnancy discrimination, said it is exceedingly rare for a company like Google to take an employee to court over an issue like this. “It almost seems they are trying to make an example over her,” she said, before highlighting that men accused of wrongdoing at Google have received much better treatment than Glasson.

“When you look at the way men accused of sexual harassment were treated versus the way a woman alleging pregnancy discrimination was treated, it is such a despicable example of the role of misogyny and patriarchy in these tech companies.”

‘It’s not at all a fair fight’

In the time since Glasson first filed her complaint, the attention paid to poor labor conditions in the tech industry – from white-collar developer jobs, to gig economy temps, and warehouse workers – has only grown.

In early April 2021, the National Labor Relations Board found that two Amazon employees were unfairly fired in retaliation for internally criticizing discriminatory practices.

In December 2020, Pinterest reached a $22m settlement with a female former executive over pay discrimination . Before that, two former employees, Ifeoma Ozoma and Aerica Shimizu Banks, came forward with allegations that they were retaliated against for advocating for fair pay.

Google, meanwhile, has continued to face claims of discrimination and retaliation.

Even in the midst of her own case, Glasson participated in global walkouts over Google’s handling of sexual misconduct and other equity issues in the workplace. In December 2020, more than 1,200 Google employees signed a letter condemning the company for allegedly firing an ethics researcher in retaliation for her criticism of Google’s diversity programs.

“I couldn’t help but wonder at the time, ‘It’s easy to show up for something like this, but what would my co-workers actually do if they learned of what was happening to me?’” she said. “As I later learned, most would do little to nothing.”

Still, Glasson said countless Googlers have reached out to her in the years since her case was first publicized in the online memo. The case is now scheduled to go to court in December.

“A lot of them tell me ‘I wish I had the courage to fight like you’,” she said. “It is heartbreaking, because they often have a lot of shame, and there is nothing to be ashamed about. It is such a difficult path to take, to fight this, and it is not right for every individual.

“It really takes a huge toll,” she added. “I would not wish this on anyone.”

• Discrimination at work

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Young v. United Parcel Service, Inc., 575 U.S. 206 (2015)

The Pregnancy Discrimination Act specifies that Title VII’s prohibition against sex discrimination applies to discrimination “because of or on the basis of pregnancy, childbirth, or related medical conditions,” 42 U.S.C 2000e(k), and that employers must treat “women affected by pregnancy . . . the same for all employment-related purposes . . . as other persons not so affected but similar in their ability or inability to work.” Young, a UPS driver, became pregnant; her doctor advised that she should not lift more than 20 pounds. UPS required drivers to lift up to 70 pounds. UPS told Young that she could not work while under a lifting restriction. Young filed a disparate-treatment claim of discrimination, identifying UPS policies that accommodated workers who were injured on the job, were covered by the Americans with Disabilities Act, or had lost Department of Transportation certifications. UPS argued that, since Young did not fall within those categories, it had not discriminated on the basis of pregnancy, but had treated her as it treated all “other” relevant “persons.” The district court granted UPS summary judgment. The Fourth Circuit affirmed. The Supreme Court vacated. Disparate treatment law normally allows an employer to implement policies that are not intended to harm members of a protected class if the employer has a nondiscriminatory, nonpretextual reason. A pregnant worker can make a prima facie case of disparate treatment by showing that she sought and was denied accommodation and that the employer did accommodate others “similar in their ability or inability to work.” The employer may then try to establish “legitimate, nondiscriminatory” reasons, other than that it is more expensive or less convenient to accommodate pregnant women. If the employer offers a reason, the plaintiff may show that it is pretextual. The plaintiff may survive a motion for summary judgment by providing sufficient evidence that the employer’s policies impose a significant burden on pregnant workers, and that the employer’s “legitimate, nondiscriminatory” reasons are not sufficiently strong to justify the burden. The plaintiff can create a genuine issue of material fact as to “significant burden” with evidence that the employer accommodates a large percentage of nonpregnant workers while failing to accommodate a large percentage of pregnant workers. Young created a genuine dispute as to whether UPS provided more favorable treatment to some employees whose situation cannot reasonably be distinguished from hers.

For an employee to succeed on a disparate treatment pregnancy discrimination claim, she must establish a prima facie case of discrimination, and, if her employer's reasons for discriminating against her were facially neutral, that those reasons were pretextual.

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued.The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader.See United States v. Detroit Timber & Lumber Co., 200 U. S. 321 .

SUPREME COURT OF THE UNITED STATES

Young v . United Parcel Service, Inc .

certiorari to the united states court of appeals for the fourth circuit

No. 12 1226. Argued December 3, 2014 Decided March 25, 2015

The Pregnancy Discrimination Act added new language to the definitions subsection of Title VII of the Civil Rights Act of 1964. The first clause of the Pregnancy Discrimination Act specifies that Title VII's prohibition against sex discrimination applies to discrimination "because of or on the basis of pregnancy, childbirth, or related medical conditions." 42 U. S. C 2000e(k). The Act's second clause says that employers must treat "women affected by pregnancy . . . the same for all employment-related purposes . . . as other persons not so affected but similar in their ability or inability to work." Ibid. This case asks the Court to determine how the latter provision applies in the context of an employer's policy that accommodates many, but not all, workers with nonpregnancy-related disabilities.

Petitioner Young was a part-time driver for respondent United Parcel Service (UPS). When she became pregnant, her doctor advised her that she should not lift more than 20 pounds. UPS, however, required drivers like Young to be able to lift up to 70 pounds. UPS told Young that she could not work while under a lifting restriction. Young subsequently filed this federal lawsuit, claiming that UPS acted unlawfully in refusing to accommodate her pregnancy-related lifting restriction. She brought only a disparate-treatment claim of discrimination, which a plaintiff can prove either by direct evidence that a workplace policy, practice, or decision relies expressly on a protected characteristic, or by using the burden-shifting framework set forth in McDonnell Douglas Corp. v. Green , 411 U. S. 792 . Under that framework, the plaintiff has "the initial burden" of "establishing a prima facie case" of discrimination. Id., at 802. If she carries her burden, the employer must have an opportunity "to articulate some legitimate, non-discriminatory reason[s] for" the difference in treatment. Ibid. If the employer articulates such reasons, the plaintiff then has "an opportunity to prove by a preponderance of the evidence that the reasons . . . were a pretext for discrimination." Texas Dept. of Community Affairs v. Burdine , 450 U. S. 248 .

After discovery, UPS sought summary judgment. In reply, Young presented several favorable facts that she believed she could prove. In particular, she pointed to UPS policies that accommodated workers who were injured on the job, had disabilities covered by the Americans with Disabilities Act of 1990 (ADA), or had lost Department of Transportation (DOT) certifications. Pursuant to these policies, Young contended, UPS had accommodated several individuals whose disabilities created work restrictions similar to hers. She argued that these policies showed that UPS discriminated against its pregnant employees because it had a light-duty-for-injury policy for numerous "other persons," but not for pregnant workers. UPS responded that, since Young did not fall within the on-the-job injury, ADA, or DOT categories, it had not discriminated against Young on the basis of pregnancy, but had treated her just as it treated all "other" relevant "persons."

The District Court granted UPS summary judgment, concluding, inter alia, that Young could not make out a prima facie case of discrimination under McDonnell Douglas . The court found that those with whom Young had compared herself those falling within the on-the-job, DOT, or ADA categories were too different to qualify as "similarly situated comparator[s]." The Fourth Circuit affirmed.

1. An individual pregnant worker who seeks to show disparate treatment through indirect evidence may do so through application of the McDonnell Douglas framework. Pp. 10 23.

(a) The parties' interpretations of the Pregnancy Discrimination Act's second clause are unpersuasive. Pp. 12 20.

(i) Young claims that as long as "an employer accommodates only a subset of workers with disabling conditions," "pregnant workers who are similar in the ability to work [must] receive the same treatment even if still other nonpregnant workers do not receive accommodations." Brief for Petitioner 28. Her reading proves too much. The Court doubts that Congress intended to grant pregnant workers an unconditional "most-favored-nation" status, such that employers who provide one or two workers with an accommodation must provide similar accommodations to all pregnant workers, irrespective of any other criteria. After all, the second clause of the Act, when referring to nonpregnant persons with similar disabilities, uses the open-ended term "other persons." It does not say that the employer must treat pregnant employees the "same" as " any other persons" who are similar in their ability or inability to work, nor does it specify the particular "other persons" Congress had in mind as appropriate comparators for pregnant workers. Moreover, disparate-treatment law normally allows an employer to implement policies that are not intended to harm members of a protected class, even if their implementation sometimes harms those members, as long as the employer has a legitimate, nondiscriminatory, nonpretextual reason for doing so. See, e.g., Burdine , supra, at 252 258. There is no reason to think Congress intended its language in the Pregnancy Discrimination Act to deviate from that approach. Pp. 12 14.

(ii) The Solicitor General argues that the Court should give special, if not controlling, weight to a 2014 Equal Employment Opportunity Commission guideline concerning the application of Title VII and the ADA to pregnant employees. But that guideline lacks the timing, "consistency," and "thoroughness" of "consideration" necessary to "give it power to persuade." Skidmore v. Swift & Co. , 323 U. S. 134 . The guideline was promulgated after certiorari was granted here; it takes a position on which previous EEOC guidelines were silent; it is inconsistent with positions long advocated by the Government; and the EEOC does not explain the basis for its latest guidance. Pp. 14 17.

(iii) UPS claims that the Act's second clause simply defines sex discrimination to include pregnancy discrimination. But that cannot be right, as the first clause of the Act accomplishes that objective. Reading the Act's second clause as UPS proposes would thus render the first clause superfluous. It would also fail to carry out a key congressional objective in passing the Act. The Act was intended to overturn the holding and the reasoning of General Elec. Co. v. Gilbert , 429 U. S. 125 , which upheld against a Title VII challenge a company plan that provided nonoccupational sickness and accident benefits to all employees but did not provide disability-benefit payments for any absence due to pregnancy. Pp. 17 20.

(b) An individual pregnant worker who seeks to show disparate treatment may make out a prima facie case under the McDonnell Douglas framework by showing that she belongs to the protected class, that she sought accommodation, that the employer did not accommodate her, and that the employer did accommodate others "similar in their ability or inability to work." The employer may then seek to justify its refusal to accommodate the plaintiff by relying on "legitimate, nondiscriminatory" reasons for denying accommodation. That reason normally cannot consist simply of a claim that it is more expensive or less convenient to add pregnant women to the category of those whom the employer accommodates. If the employer offers a "legitimate, nondiscriminatory" reason, the plaintiff may show that it is in fact pretextual. The plaintiff may reach a jury on this issue by providing sufficient evidence that the employer's policies impose a significant burden on pregnant workers, and that the employer's "legitimate, nondiscriminatory" reasons are not sufficiently strong to justify the burden, but rather when considered along with the burden imposed give rise to an inference of intentional discrimination. The plaintiff can create a genuine issue of material fact as to whether a significant burden exists by providing evidence that the employer accommodates a large percentage of nonpregnant workers while failing to accommodate a large percentage of pregnant workers. This approach is consistent with the longstanding rule that a plaintiff can use circumstantial proof to rebut an employer's apparently legitimate, nondiscriminatory reasons, see Burdine , supra , at 255, n. 10, and with Congress' intent to overrule Gilbert. Pp. 20 23.

2. Under this interpretation of the Act, the Fourth Circuit's judgment must be vacated. Summary judgment is appropriate when there is "no genuine dispute as to any material fact." Fed. Rule Civ. Proc. 56(a). The record here shows that Young created a genuine dispute as to whether UPS provided more favorable treatment to at least some employees whose situation cannot reasonably be distinguished from hers. It is left to the Fourth Circuit to determine on remand whether Young also created a genuine issue of material fact as to whether UPS' reasons for having treated Young less favorably than these other nonpregnant employees were pretextual. Pp. 23 24.

707 F. 3d 437, vacated and remanded.

Breyer, J., delivered the opinion of the Court, in which Roberts, C. J., and Ginsburg, Sotomayor, and Kagan, JJ., joined. Alito, J., filed an opinion concurring in the judgment. Scalia, J., filed a dissenting opinion, in which Kennedy and Thomas, JJ., joined. Kennedy, J., filed a dissenting opinion.

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The New York Times

Business | pregnancy discrimination is rampant inside america’s biggest companies, pregnancy discrimination is rampant inside america’s biggest companies.

By NATALIE KITROEFF and JESSICA SILVER-GREENBERG JUNE 15, 2018

Many pregnant women have been systematically sidelined in the workplace. They’re passed over for promotions and raises. They’re fired when they complain.

By NATALIE KITROEFF and JESSICA SILVER-GREENBERG FEB. 8, 2019

American companies have spent years trying to become more welcoming to women. They have rolled out generous parental leave policies, designed cushy lactation rooms and plowed millions of dollars into programs aimed at retaining mothers.

But these advances haven’t changed a simple fact: Whether women work at Walmart or on Wall Street, getting pregnant is often the moment they are knocked off the professional ladder.

Throughout the American workplace, pregnancy discrimination remains widespread. It can start as soon as a woman is showing, and it often lasts through her early years as a mother.

The New York Times reviewed thousands of pages of court and public records and interviewed dozens of women, their lawyers and government officials. A clear pattern emerged. Many of the country’s largest and most prestigious companies still systematically sideline pregnant women. They pass them over for promotions and raises. They fire them when they complain.

In physically demanding jobs — where an increasing number of women unload ships, patrol streets and hoist boxes — the discrimination can be blatant. Pregnant women risk losing their jobs when they ask to carry water bottles or take rest breaks.

In corporate office towers, the discrimination tends to be more subtle. Pregnant women and mothers are often perceived as less committed, steered away from prestigious assignments, excluded from client meetings and slighted at bonus season.

Each child chops 4 percent off a woman’s hourly wages, according to a 2014 analysis by a sociologist at the University of Massachusetts, Amherst. Men’s earnings increase by 6 percent when they become fathers, after controlling for experience, education, marital status and hours worked.

“Some women hit the maternal wall long before the glass ceiling,” said Joan C. Williams, a professor at University of California Hastings College of Law who has testified about pregnancy discrimination at regulatory hearings. “There are 20 years of lab studies that show the bias exists and that, once triggered, it’s very strong.”

Of course, plenty of women decide to step back from their careers after becoming mothers. Some want to devote themselves to parenthood. Others lack affordable child care.

But for those who want to keep working at the same level, getting pregnant and having a child often deals them an involuntary setback.

The number of pregnancy discrimination claims filed annually with the Equal Employment Opportunity Commission has been steadily rising for two decades and is hovering near an all-time high.

It’s not just the private sector. In September, a federal appeals court ruled in favor of Stephanie Hicks, who sued the Tuscaloosa, Ala., police department for pregnancy discrimination. Ms. Hicks was lactating, and her doctor told her that her bulletproof vest was too tight and risked causing a breast infection. Her superior’s solution was a vest so baggy that it left portions of her torso exposed.

Tens of thousands of women have taken legal action alleging pregnancy discrimination at companies including Walmart, Merck, AT&T, Whole Foods, 21st Century Fox, KPMG, Novartis and the law firm Morrison & Foerster. All of those companies boast on their websites about celebrating and empowering women.

Women’s Brains

As a senior woman at Glencore, the world’s largest commodity trading company, Erin Murphy is a rarity. She earns a six-figure salary plus a bonus coordinating the movement of the oil that Glencore buys and sells. Most of the traders whom she works with are men.

The few women at the company have endured a steady stream of sexist comments, according to Ms. Murphy. Her account of Glencore’s culture was verified by two employees, one of whom recently left the company. They requested anonymity because they feared retaliation.

On the company’s trading floor, men bantered about groping the Queen of England’s genitals. As Glencore was preparing to relocate from Connecticut to New York last February, the traders — including Ms. Murphy’s boss, Guy Freshwater — openly discussed how much “hot ass” there would be at the gym near the new office.

In 2013, a year after Ms. Murphy arrived, Mr. Freshwater described her in a performance review as “one of the hardest working” colleagues. In a performance review the next year, he called her a “strong leader” who is “diligent, conscientious and determined.”

But when Ms. Murphy told Mr. Freshwater she was pregnant with her first child, he told her it would “definitely plateau” her career, she said in the affidavit. In 2016, she got pregnant with her second child. One afternoon, Mr. Freshwater announced to the trading floor that the most-read article on the BBC’s website was about pregnancy altering women’s brains. Ms. Murphy, clearly showing, was the only pregnant woman there.

“It was like they assumed my brain had totally changed overnight,” Ms. Murphy, 41, said in an interview. “I was seen as having no more potential.”

When she was eight months pregnant, she discussed potential future career moves with Mr. Freshwater. According to her, Mr. Freshwater responded, “You’re old and having babies so there’s nowhere for you to go.”

A Glencore spokesman declined to comment on Mr. Freshwater’s behalf.

After she came back from four months of maternity leave, she organized her life so that having children wouldn’t interfere with her career. She arranged for child care starting at 7 a.m. so she would never be late.

But as her co-workers were promoted, her bosses passed her over and her bonuses barely rose, Ms. Murphy said.

When there was an opening to be the head of her department, Ms. Murphy said she never got a chance to apply. The job instead went to a less experienced man. Ms. Murphy said an executive involved in the selection process had previously asked repeatedly whether she had adequate child care.

Ms. Murphy said that after she missed out on another job, the same Glencore executive told her it was because of the timing of her maternity leave. Ms. Murphy has retained a lawyer and is planning to file a lawsuit against Glencore.

Glencore’s spokesman, Charles Watenphul, defended the company’s practices. “Glencore Ltd. is committed to supporting women going on and returning from maternity leave,” he said. He said Ms. Murphy was never passed over for promotions or treated differently because of her pregnancies. He said that she received bonuses and pay increases every year. Her lawyer, Mark Carey, said that Ms. Murphy was only given cost-of-living increases and was denied opportunities to advance.

Ms. Murphy’s problems are not rare. Managers often regard women who are visibly pregnant as less committed, less dependable, less authoritative and more irrational than other women.

A study conducted by Shelley Correll, a Stanford sociologist, presented hundreds of real-world hiring managers with two résumés from equally qualified women. Half of them signaled that the candidate had a child. The managers were twice as likely to call the apparently childless woman for an interview. Ms. Correll called it a “motherhood penalty.”

“There is a cultural perception that if you’re a good mother, you’re so dedicated to your children that you couldn’t possibly be that dedicated to your career,” Ms. Correll said.

A paper published in November by researchers at the Census Bureau examined the pay of spouses. Two years before they had their first child, the husbands made only slightly more than their wives. By the time their children turned 1, the size of that pay gap had doubled to more than $25,000. Women taking maternity leave, dropping out of the work force or working fewer hours could contribute to that disparity, but it does not explain all of it, the researchers said.

Ms. Murphy still works at Glencore. In January, she filed a complaint of pregnancy discrimination with the Equal Employment Opportunity Commission. Last year, the agency received 3,184 pregnancy discrimination complaints, about twice as many as in 1992, when it began keeping electronic records. Regulators say many women never file complaints because they can’t afford an attorney, don’t recognize that what happened to them is illegal or fear retaliation.

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Lost Momentum

Merck, the giant pharmaceutical company based in Kenilworth, N.J., presents itself as a champion of professional women. “We celebrate the women whose hard work and tenacity have helped us continue to invent for life,” the company’s website boasts .

That is part of the reason Rachel Mountis wanted to work there.

Within a year of joining in 2005, she was given a coveted job selling vaccines. She was promoted four years later. She won a Vice President’s Club Award for sales and a Peer Award for “outstanding leadership.” Merck paid for her to get a master’s degree in business at New York University.

Ms. Mountis knew that when she got pregnant in 2010 she would need to take several weeks off for maternity leave. That meant she wouldn’t be able to stay in constant contact with the doctors she had cultivated as customers — and that her absence could cost Merck business.

A few weeks before Ms. Mountis’s due date, Merck told her and a handful of colleagues that they were being laid off in a downsizing.

“On paper, I was the same professional that I was nine months earlier,” she said. Being pregnant “was the only thing that was different.”

Ms. Mountis eventually got another job at Merck, but it was a demotion with lower bonus potential.

Merck was already facing a lawsuit accusing the company of paying women less than men and denying them professional opportunities. That suit, in New Jersey federal court, was brought by Kelli Smith, a Merck saleswoman who said her career was derailed when she got pregnant. “You’re not going anywhere” at the company, a male colleague told Ms. Smith, according to the suit.

The women involved in the litigation say they were harassed by male superiors.

At a conference, a Merck executive referred to a female employee as the “hottest one in here” and asked what he could do to get her upstairs to his hotel room, according to court documents.

At another company event, the same executive referred to a group of women from a company that Merck had just acquired as “whores” and said “they are much hotter than the Merck whores.”

In 2014, Ms. Mountis joined the lawsuit, which now covers roughly 3,900 women.

A trial date has not been set. A Merck spokeswoman said the company “has a strong anti-discrimination policy.” Ms. Mountis, the spokeswoman said, “was supported throughout her career to ensure she had opportunities to advance and succeed.”

Ms. Mountis tried to make the best of her less prestigious job. Merck demoted her again in 2012, while she was on maternity leave after giving birth to her second child. The next year, Ms. Mountis resigned. She eventually took a job at a pharmaceutical company that is a fraction of Merck’s size.

“I am still trying to get my momentum back,” Ms. Mountis said.

Ms. Smith also moved to a much smaller drug company.

Other drug companies have faced similar complaints. Novartis in 2010 agreed to pay $175 million to settle a class-action lawsuit in which thousands of current and former sales representatives said the company discriminated against women, including expecting mothers, in pay and promotions.

One former Novartis saleswoman, Christine Macarelli, said that her boss told her that “women who find themselves in my position — single, unmarried — should consider an abortion.” When she returned from maternity leave, she said she was told to stop trying to get a promotion “because of my unfortunate circumstances at home — being my son Anthony.”

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A Feminist Revolt

The nation’s first law against pregnancy discrimination traces back to a 1970s case about how General Electric treated expectant mothers.

The company at the time gave paid time off to workers with disabilities, but not to pregnant women. The Supreme Court ruled in 1976 that the company’s policy wasn’t discriminatory.

Feminist leaders and unions campaigned to change the law to protect pregnant women. In 1978, Congress passed the Pregnancy Discrimination Act , which made it illegal to treat pregnant women differently from other people “similar in their ability or inability to work.”

That didn’t resolve the issue. Employers argued in court that pregnant women were most “similar” to workers injured off the job and, therefore, didn’t deserve accommodations.

Then, Peggy Young sued U.P.S. for discrimination. She had been an early-morning driver when she got pregnant in 2006. Her doctor instructed her not to lift heavy boxes. U.P.S. told her it couldn’t give her a light-duty job. She ended up on unpaid leave without health insurance.

At the time, U.P.S. gave reprieves from heavy lifting to drivers injured on the job and those who were permanently disabled. Even employees who had lost their licenses after driving drunk got different assignments. Ms. Young argued that she should have gotten the same deal.

Two federal courts ruled in U.P.S.’s favor. Ms. Young appealed to the Supreme Court. During oral arguments in 2014, Justice Ruth Bader Ginsburg challenged U.P.S.’s lawyer to cite “a single instance of anyone who needed a lifting dispensation who didn’t get it except for pregnant people.” The U.P.S. lawyer drew a blank.

In 2015, the court ruled 6 to 3 in Ms. Young’s favor. But the justices stopped short of establishing an outright protection for expectant mothers. They just said that if employers are accommodating big groups of other workers — people with disabilities, for example — but not pregnant women, they are probably violating the Pregnancy Discrimination Act.

Demi Moore’s Stunt

Otisha Woolbright heaved 50-pound trays of chickens into industrial ovens every day at her job in the deli and bakery of a Walmart in Jacksonville, Fla.

In 2013, when she was three months pregnant, she started bleeding and went to the emergency room. She was told that she was at risk of miscarrying. She returned to Walmart with a physician’s note saying that she should avoid heavy lifting. She asked for light duty.

That’s when her boss, Teresa Blalock, said she had seen a pregnant Demi Moore do acrobatics on TV.

In an email to The Times, Ms. Moore said that a stunt double actually performed the routine.

“You would have to be extremely ignorant and inexperienced with pregnancy or just completely uncaring and insensitive to use a moment of comedic entertainment, like my appearance on David Letterman while I was eight and a half months pregnant, to pressure a pregnant woman into doing something that put her or her baby at risk,” she said.

According to Ms. Woolbright, Ms. Blalock said that if she couldn’t lift chickens, she could “walk out those doors.”

Ms. Woolbright couldn’t afford to lose her paycheck, so she kept lifting chickens.

“What choice did I have? There was no other job that was going to hire me being pregnant,” she said.

Later that month, Ms. Woolbright said, she was lifting a tray of chickens when she felt a sharp pain. Scared she was having a miscarriage, she went back to the hospital. Walmart then put her on light duty.

“We disagree that a specific request for accommodations due to pregnancy was made and that we denied that request,” a Walmart spokesman, Ragan Dickens, said. He said that “Ms. Blalock, a mother and a grandmother, was supportive of Ms. Woolbright.”

Ms. Woolbright asked about maternity leave. Three days later, she said she was called into a cramped office. She stood there sweating, seven months pregnant. “Walmart will no longer be needing your services,” a supervisor said.

Ms. Woolbright sued Walmart, the nation’s largest employer. Her suit, which is seeking class-action status, is pending.

It took Ms. Woolbright a year to land another job. Her children outgrew their clothes. She thought about swallowing enough antidepressants to kill herself. After stints at a restaurant and a van rental company, she stopped working, because she couldn’t get shifts that allowed her to take care of her children.

Walmart is the least expensive store in town, and Ms. Woolbright goes there to buy baby formula and diapers. “It’s torture,” she said.

Pausing to Vomit

Seven hundred miles to the north, Candis Riggins was scrubbing toilets at a Walmart in Laurel, Md., when she started to feel sick. She was five months pregnant, and the smell of the cleaning fluids nauseated her. She complained several times to a manager, who refused to permanently reassign her to another position. So she kept cleaning bathrooms, often pausing to vomit.

Doctors told her that chemicals in the cleaning products were endangering her and her unborn child.

One chilly morning on her way to work, she fainted at the bus stop.

Ms. Riggins again asked a manager for a different job. This time, Walmart let her clean the store’s doors instead of the bathrooms. But she said the chemicals still made her ill.

She was eight months pregnant when she started regularly missing shifts. Walmart fired her, citing the absences. She now works at Target.

Mr. Dickens, the Walmart spokesman, said the company allowed her to stop working with the chemicals she complained about and occasionally let her work as a cashier or store greeter. Ms. Riggins’s lawyer, Dina Bakst, said that her client still had to spend most of her days cleaning.

In 2017, under pressure from Ms. Woolbright’s class-action lawsuit and E.E.O.C. complaints, Walmart updated its guidelines on how to accommodate pregnant women. The nationwide policy now includes a temporary, less taxing job as a “possible” solution. It doesn’t provide a guarantee.

Additional production by Whitney Richardson and Jessica White

More on NYTimes.com

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ACLU Wins Appeal in Pregnant Workers’ Rights Case

MONTGOMERY, AL — The American Civil Liberties Union, the ACLU of Alabama, and Birmingham attorney Heather Leonard won a federal court appeal in the U.S. Court of Appeals for the Eleventh Circuit today in a pregnancy discrimination case, Durham v. Rural/Metro Corporation . The appeal was filed on behalf of client Michelle Durham, who was forced out of her job as an emergency medical technician (EMT) after being denied a temporary job accommodation due to her pregnancy.

Michelle had been working as an EMT for Rural/Metro for five months when she learned she was pregnant in September 2015. Michelle’s doctor imposed a lifting restriction during her pregnancy, but Rural/Metro refused to accommodate that temporary limitation — despite maintaining a policy of providing “light duty” assignments to EMTs injured on the job. Michelle was forced onto unpaid leave six months before her due date. Attorney Heather Leonard represented Durham before an Alabama district court, which dismissed the case in 2018. With the support of the ACLU, ACLU of Alabama and Heather Leonard, Durham appealed . Today, the Eleventh Circuit reversed that decision, and ruled in Durham’s favor.

“This has been a long, uphill battle, but I’m thrilled the court ruled in our favor and is pushing employers to do the right thing,” said plaintiff Michelle Durham . “No one should lose their job for being pregnant, and I hope what happened to me doesn’t happen to others.”

The U.S. Court of Appeals for the Eleventh Circuit found that the district court had misapplied the federal Pregnancy Discrimination Act (PDA), which requires that pregnant workers be treated the same as others “similar in their ability or inability to work.” Relying on the Supreme Court’s 2015 landmark decision in Young v. United Parcel Service, Inc. — which concerned UPS’s refusal to accommodate a pregnant driver’s lifting restriction — the court found Rural/Metro’s policy violated the PDA because the company could not justify the preferential treatment it afforded other EMTs.

“Today’s ruling goes a long way toward assuring that pregnant workers will enjoy the full anti-discrimination protections guaranteed by the law,” said Gillian Thomas, senior staff attorney with the ACLU Women’s Rights Project . “The Pregnancy Discrimination Act outlawed pregnancy discrimination in the workplace more than 40 years ago, but employers — and courts — have chipped away at that promise. Today, the Eleventh Circuit sent a powerful message that the PDA means what it says: pregnant workers must be accommodated on the same terms as other employees.”

“No woman should go through what Michelle Durham did — losing her job just because she decided to start a family,” said attorney Heather Leonard of Birmingham. “We are thrilled that the appeals court agreed that the district court made a mistake, and that Michelle’s case now will get the full consideration it deserves. She has waited for justice long enough.”

Kimberlie Michelle Durham v. Rural/Metro Corporation

Source: American Civil Liberties Union

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Walmart Pregnancy Accommodation Case Raises Proof Burden Issues

By Patrick Dorrian

The EEOC’s argument that Walmart is liable for pregnancy discrimination because it failed to expressly address why it excluded pregnant workers under a policy that provided temporary light duty to employees injured on the job was met with some skepticism by the Seventh Circuit on Thursday.

The U.S. Supreme Court’s 2015 decision in Young v. United Parcel Service Inc. established that just saying why a policy only included certain workers isn’t enough, the Equal Employment Opportunity Commission said during oral argument on appeal in a suit filed against the retailer in 2018.

Wal-Mart Stores East LP never offered a reason ...

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Center for Employment Equity

Pregnancy discrimination in the workplace.

Carly McCann & Donald Tomaskovic-Devey

Download full article pdf.

Despite laws intended to end workplace pregnancy discrimination, thousands of women face employer discrimination related to their pregnancies every year. 1 This is true for women in low wage physically demanding occupations, 2 high wage occupations, 3 and even workplaces dedicated to supporting women. 4

Discrimination against pregnant workers has been illegal since the Pregnancy Discrimination Act (PDA) was passed in 1978. The PDA formally prohibited employer discrimination on the basis of pregnancy by explicitly categorizing pregnancy discrimination as sex discrimination under Title VII of the Civil Rights Act of 1964. Though the PDA has helped more women continue working while pregnant, research has consistently found that women continue to face employer discrimination related to their pregnancies. 5  

However, much of this research focuses on litigated court cases. Litigated cases are important for clarifying courts’ interpretation of laws and providing precedent, however, since only a small minority of employer discrimination charges go to court, examining litigated cases does not provide a full understanding of the extent of pregnancy discrimination and the remedies available to those who file a charge against their employer. Our report provides a broader understanding of workplace pregnancy discrimination by analyzing all 26,650 pregnancy discrimination charges filed with the U.S. Equal Employment Opportunity Commission (EEOC) and state Fair Employment Practices Agencies (FEPAs) between 2012 and 2016.

This report provides a brief introduction to pregnancy discrimination law and what is known about the prevalence of pregnancy discrimination in U.S. workplaces. We then outline the process of filing a charge and examine who files pregnancy discrimination charges. Next, we examine the content of pregnancy charges—the types of discrimination that targets allege. We then analyze the industrial and workplace contexts that produce pregnancy discrimination and review the outcomes of pregnancy discrimination charges. We conclude with some policy proposals and recommendations for future research and EEOC data collection protocols.

This report uses confidential employer discrimination charge data from the U.S. Equal Employment Opportunity Commission (EEOC). This report focuses on charges that include an allegation of employer discrimination on the basis pregnancy filed between fiscal years 2012 and 2016. These charges may be filed directly with the EEOC or with one of the state or local Fair Employment Practices Agencies (FEPAs) that have work sharing agreements with the EEOC. As a result, we analyze data on charges dual-filed with the EEOC and FEPAs from all states and the District of Columbia. This research was conducted under strict confidentiality restrictions enforced by the EEOC.

View Fuzzy Matching Appendix and Industry Appendix  

Main findings, pregnancy discrimination is a unique form of sex discrimination. compared to other forms of discrimination, pregnancy discrimination happens quickly—when discriminat- ing employers learn that an employee is pregnant she is fired, often the same day., despite an overall higher success rate of receiving benefits than other forms of sex discrimination, the majority (74%) of pregnancy charges result in no monetary benefit or required workplace change through the eeoc process. of the 23% of charges that receive any monetary benefit, the average benefit is only $17,976 and the median benefit is only $8,000. these monetary benefits are lower than those secured for other sex-based discrimination charges., the rate of pregnancy discrimination appears to be higher in male dominated industries., having more female managers appears to reduce the likelihood of pregnancy discrimination in a workplace. establishments charged with pregnancy discrimination tend to have more male managers., pregnancy discrimination claims take on average 280 days to resolve within the eeoc case processing system. since a normal pregnancy lasts about the same amount of time and it is likely that women do not disclose their pregnancy in the first trimester, the charging system is not well designed to prevent or redress pregnancy discrimination., pregnancy discrimination and the law.

Prior to the implementation of pregnancy discrimination laws, women were routinely fired from their jobs because of their pregnancies. 6 This practice was both common and legal. Through both official policy and personal biases, employers frequently refused to hire pregnant women, forced pregnant women to resign, and denied them the insurance benefits and disability coverage available to other workers. 7

Two early Supreme Court cases upheld these practices by ruling that pregnancy discrimination was not a form of sex discrimination under the Equal Protection Clause or Title VII of the Civil Rights Act. In a controversial ruling in Geduldig v. Aiello (1974), the Court ruled that the exclusion of pregnancy from California’s disability insurance program did not constitute sex discrimination because the program did not discriminate between men and women, but rather “the program divided potential recipients into two groups–pregnant women and nonpregnant persons.” 8 The ruling in Geduldig laid the groundwork for a similar Supreme Court ruling two years later. In General Electric Co. v. Gilbert (1976), the Supreme Court held that Title VII protection against sex discrimination did not include pregnancy discrimination by allowing General Electric’s insurance policy to exclude coverage for pregnancy. 9 Outrage following this ruling quickly led to the formation of the Campaign to End Discrimination Against Pregnant Workers (CEDAPW), a coalition of over 200 activists and feminists, and even some anti-abortion activists, dedicated to amending Title VII to protect pregnant workers. 10 The campaign culminated in the passage of the Pregnancy Discrimination Act of 1978 (PDA).

The Pregnancy Discrimination Act is the only federal law aimed at protecting pregnant women in the workplace. The PDA amended Title VII of the Civil Rights Act of 1964 to “prohibit sex discrimination on the basis of pregnancy.” 11 The PDA applies to all aspects of employment, including hiring, firing, promotions, benefits, and other terms and conditions of employment. The PDA requires employers to accommodate pregnant workers only if it is already doing so for other employees who are “similar in their ability or inability to work.” 12 Under the PDA, employers are required to treat pregnant workers the same as any other temporarily disabled employee, such as someone with a back injury, by providing reasonable accommodations. Reasonable accommodations include allowing a pregnant employee more frequent bathroom breaks, modifying a work schedule, granting leave in addition to what an employer may provide under sick leave, or temporarily assigning an employee to light duty. 13 Because employers are only required to accommodate workers if it accommodates “similarly situated” employees,  this means “employers can treat pregnant women as badly as they treat similarly affected but nonpregnant employees.” 14

Additionally, under the 2008 Americans with Disabilities Act Amendments Act (ADAAA) employers must provide reasonable accommodation for pregnancy related disabilities, unless doing so would result in “significant difficulty or expense.” 15 Although pregnancy itself is not a disability, the ADAAA expanded the definition of disability to include pregnancy related impairments, such as gestational diabetes, pregnancy related carpal tunnel syndrome, or preeclampsia, as covered disabilities. Although the ADAAA expanded the coverage for some pregnant workers, “it is not likely to substantially impact women’s ability to be protected from adverse employment” given how few pregnancy discrimination claims include ADA claims. 16 Additionally, the court’s distinction between the natural state of pregnancy and “pregnancy related disabilities” has limited the ability of the ADA to protect pregnant employees. 17

The interpretation of these laws in U.S. courts has a complex history. 18 While the PDA provides pregnant workers the right to be treated the same as workers with similar abilities, the courts have historically struggled to define the proper comparison group. The 2015 Supreme Court ruling in Young v. United Parcel Service, Inc . provided some clarity on employers’ responsibilities to accommodate pregnant workers. When Peggy Young, a delivery driver for United Parcel Service (UPS), became pregnant her doctor recommended that she not lift more than 20 pounds. As an “air driver,” delivering packages that arrived overnight by air, Young primarily delivered small envelopes and rarely had to deliver packages that weighed 20 pounds, much less the 70 pounds required in the job description. When she provided her supervisor with her doctor’s note, she was told she would not be allowed to work if she could not lift the required 70 pounds for drivers and was placed on unpaid leave.

Trial and appellate courts ruled that UPS did not violate the PDA because they did not single out pregnancy—there were, in theory, other employees who would need accommodations and not receive them. However, Ms. Young provided evidence that UPS provided accommodations to other employees suffering disabilities that had not occurred on the job, including accommodations to drivers who lost their Department of Transportation certifications due to driving under the influence or a motor vehicle accident, but did not provide her the same accommodations. 19 The Supreme Court ruled 6 to 3 in favor of Peggy Young and stated that accommodating a large group of employees but not pregnant workers is aviolation of the PDA.

Despite ruling in Ms. Young’s favor, the court did not provide outright protection for pregnant workers. In the majority opinion, the Court wrote that the PDA did not require employers to provide accommodations to pregnant workers that were offered to any other worker. Instead, the Court wrote that PDA failure to accommodate cases will require pregnant workers “to show that many workers were treated better than they were and that the employer’s reason for differential treatment was in fact a ‘pretext’ for discrimination.” 20

Activists and politicians have argued that by only providing a comparative, rather than absolute, right to accommodation, current laws stop short of guaranteeing protection for all pregnant workers. A recent report by A Better Balance, a work and family legal center, found that in over two-thirds of pregnancy discrimination cases brought to court since the 2015 Young ruling, courts have ruled that employers were permitted to deny accommodations to pregnant workers under the PDA primarily because of the difficulties plaintiffs face in establishing “comparator” employees. 21

Because the PDA only provides comparative protection, many activists and legal scholars are advocating for Congress to pass the federal Pregnant Workers Fairness Act (PWFA). The PWFA, if passed, would explicitly require reasonable accommodation of pregnancy regardless of how employers treat other similarly situated employees. As with the current ADA, the proposed PWFA would apply only to employers with 15 or more employees and would allow exemptions for businesses if the accommodation imposes undue hardship on an employer.

The PWFA was first introduced in 2012 and was referred to Committees but never reached the floor for a vote. After years of failing to come to a vote, in September 2020 the House of Representatives passed the Pregnant Workers Fairness Act in a strong bipartisan vote (329-73). Although the federal law has not yet passed, as of May 2020, 29 states, the District of Columbia, and four cities have passed similar legislation requiring employers to provide reasonable accommodation for pregnant workers. 22

How Prevalent is Pregnancy Discrimination?

Estimating the national prevalence of pregnancy discrimination is difficult given the lack of data on pregnant women’s work experiences. Yet, understanding the workplace experiences of expecting mothers is essential given their growing labor force participation and increasing labor force attachment. According to a 2011 Census Report, the likelihood that a woman in the U.S. would work while pregnant increased significantly through the 1960s and 70s. 23   In the early 1960s about 45% of women worked during their first pregnancies, but by 2008 about 65% of women worked during their first pregnancies. Today, nearly 70% of women work during their pregnancies.

Not only are more women working during their pregnancies, but they are also working later into their pregnancies. In the 1960s, most (65%) women pregnant with their first child stopped working more than a month before the birth and only about 35% continued working into the final month of their pregnancy. By 2008, this trend reversed with about 82% of working women pregnant with their first child continuing to work within one month of the birth compared with just 18% who stopped more than a month before their birth.

Despite the increasing trend of women working during their pregnancies, expecting mothers continue to face challenges in the workplace. While many women can continue working during pregnancy without any adjustments to their job, a recent survey by Childbirth Connection, an initiative focused on maternity care, found that the majority of women who worked during their pregnancies needed some type of workplace accommodation related to their pregnancy.  Often, these accommodations are minor;  the majority (71%) of women who reported needing an accommodation required more frequent breaks, such as extra bathroom breaks.  While most of the surveyed women reported that their employers honored their request, a significant number of women reported that employers denied their requests and claimed they were not required to honor pregnancy-related accommodations. Based on these survey results, an estimated 250,000 women are denied accommodations related to their pregnancies each year. 24 This is likely a conservative estimate of unmet need, given that around 36% of women who reported needing an accommodation did not ask their employer. 25

As with other forms of employer discrimination, the majority of women who experience workplace pregnancy discrimination do not file a formal discrimination charge. For example, our prior research has estimated that less than 1% of workplace sexual harassment incidences are filed with the EEOC or FEPA. 26 Approximately 5,300 pregnancy discrimination charges are filed each year, suggesting that only about 2% of pregnancy discrimination incidences are filed with the federal EEOC or state FEPA.

Filing a Pregnancy Discrimination Charge

Before an employee who believes they have been discriminated against can file a lawsuit against their employer, they first must submit a complaint to the EEOC or a local state Fair Employment Practices Agency (FEPA). 27 A charge of discrimination does not determine that unlawful discrimination occurred; rather, it initiates the process for the EEOC to investigate whether there is reasonable cause to determine that discrimination occurred.

After the charge is filed, the EEOC has several routes to resolving charges, any of which can lead to monetary or other benefits, such as the primary goal of workplace accommodations, for the charging party. Prior to an investigation, the EEOC offers charging parties and their employers a mediation process with a third-party mediator to resolve a complaint. 28 Charges may also be settled at any time during the investigation process. Mediation and settlements are voluntary and typically save time and effort associated with investigations. If the charge is not resolved through mediation or a settlement, it will continue through the investigation process where the EEOC will collect additional information from the charging party and the employer to determine if there is reasonable cause to believe discrimination occurred.

After an investigation in which the EEOC finds reasonable cause to believe discrimination has occurred, the EEOC works to resolve a complaint through a conciliation process. Approximately 2% of pregnancy discrimination charges filed with EEOC between 2012 and 2016 resulted in successful conciliation. Although a small proportion of pregnancy discrimination charges, it is similar to the rate for all types of employer discrimination charges protected under Title VII filed with the EEOC. 29 Most charges are settled in the EEOC’s mediation or conciliation processes or are dropped. A charging party may drop out of the EEOC process and request a right to sue letter or the charge may be closed for administrative reasons such as failure to locate the charging party, lack of jurisdiction, or the charging party requests withdrawal of the charge. 30 In the EEOC charge data, 15% of pregnancy charges were closed for these administrative reasons.

If conciliation fails, either the charging party or the EEOC may file a lawsuit in court. 31 Only a small number of employer discrimination charges goes to court, and the EEOC files a limited number of employer discrimination cases. 32 For example, in 2014 the EEOC filed 14 pregnancy related lawsuits. 33 Charging parties can get a “right to sue” letter from the EEOC and bring a lawsuit to court via the private bar. Research by Michelle Deardorff and James Dahl suggests this is also rare. From the passage of the PDA in 1978 to 2013, Deardorff and Dahl recorded 1,112 federal district and appellate court cases that explicitly relied on the PDA and/or ADA for legal authority. This suggests only about 33 pregnancy discrimination cases go to court each year. 34 Thus, it is the EEOC resolution process, not private courts, that is the primary legal adjudicator of pregnancy discrimination complaints.

Charges that go to trial are likely some of the most contested cases (charges with the most merit are likely settled prior to trial and charges with the least merit are likely dropped). 35 These cases that reach the litigation phase are important, not just for that specific case, but for future cases as they “have an impact on precedent, the determination of future litigation and statutory interpretation.” 36 The rulings in courts can determine how other federal courts and the EEOC interpret the PDA and ADA.

Who Files Pregnancy Discrimination Charges?

Using data on employer discrimination charges filed with the EEOC or state FEPA between 2012 to 2016, table 1 describes the race of women who filed pregnancy discrimination charges compared to sex-based discrimination complaints that do not include an allegation of pregnancy discrimination. 37

Table 1: Title VII Employment Discrimination Charges by Race 

  note : sample is 5,683,567 full-time, year-round, aged 16 to 65 workers from the american community survey cumulative file 2011-2015. .

Relative to other sex-based discrimination charges, pregnancy discrimination charges are more common among white women and less common among black women. However, relative to their representation in the labor market overall, black women report a disproportionately large percentage of workplace pregnancy discrimination charges; they account for 14% of the female labor force but file 37% of pregnancy discrimination charges. 38 This may be because mothers in low-wage jobs, where workplace accommodations for pregnancy may be more necessary due to the physical requirements of these jobs, are disproportionately women of color. 39 It may also be driven by different expectations and assumptions of work and motherhood along racial, ethnic, and class lines. 40

Contents of a Pregnancy Discrimination Charge

Discrimination charges may contain one or more legal basis for the complaint as well as at least one issue. A basis is the legally protected category that the plaintiff claims was the root cause of discrimination. Under Title VII of the 1964 Civil Rights Act and its extensions, these protected categories include race, sex, pregnancy, color, religion, disability, age, and national origin. Additionally, the law prohibits retaliation against individuals who file a discrimination claim by protecting an employee’s right to oppose unlawful discrimination, thus protection from retaliation is another basis for filing a discrimination charge.

An issue is the action or policy alleged to be discriminatory—the kind of discrimination that took place—such as firing, demotion, or harassment. Discrimination charges often contain multiple bases and issues. However, as we show below, pregnancy discrimination charges contain fewer co-occurring issues and bases compared to other forms of sex discrimination.

Timing of allegations

Pregnancy discrimination is frequently a targeted response to the charging party’s pregnancy status. Whereas other forms of discrimination may develop over time with escalating incidences, discrimination on the basis of pregnancy happens relatively quickly.

Table 2: Time Frame of Pregnancy and Other Sex-Based Allegations

Table 4 displays the breakdown of the number of days between when the alleged discriminatory behavior began and ended.  The average duration of discriminatory behavior based on pregnancy is about 2.5 months (75 days), however the median is 0 days, compared to the average for other sex-based discrimination is around 6 months (180 days) with median of 22 days. Nearly 60% of pregnancy discrimination continues for less than 2 weeks. This aligns with previous research of pregnancy discrimination cases that has found women are frequently fired on the spot or shortly after they disclose their pregnancy status to their employers. 41 Although there are some pregnancy discrimination charges with long durations, in some cases longer than the pregnancy itself, these are charges that allege multiple forms of discrimination, which may have continued after the pregnancy. For example, if a woman of color alleges both pregnancy and race discrimination, the race discrimination may continue after the pregnancy.

On average, women experience other sex-based discrimination for longer periods of time than pregnancy discrimination before filing a discrimination charge. This may also reflect the law for other forms of sex discrimination. For example, the law regarding sexual harassment in the workplace does not prohibit “isolated incidents that are not very serious,” but regards harassment as illegal when it is severe or pervasive that a reasonable person would consider it a hostile work environment. 42

Examining the timing of allegations also reveals when the alleged discriminatory behavior occurred. Of particular interest is whether employer responses occur before or after the target files a formal charge. Comparing the date when the alleged discriminatory action occurred and the date the target initially contacted the EEOC, we find that the vast majority (98%) of all alleged Title VII discrimination occurs before the target contacts the EEOC or FEPA, rather than as a response to the employee filing a discrimination charge.

The EEOC charge data does not report if employees raised their discrimination concerns with their employer prior to contacting the EEOC. Prior research on sexual harassment suggests that only about a third of people who perceive discrimination raise the issue with someone in their workplace. 43 Since the period of pregnancy discrimination is so much shorter and firing happens fairly quickly in many instances, we suspect there are few opportunities for recourse with the employer. The 23% of pregnancy discrimination charges that report retaliation are likely to include this group of workers who first looked for redress internally from their employer.

In only 3% of all sex-based discrimination cases does employer retaliation occur after the target contacts the EEOC or FEPA. This is true for pregnancy charges that contain a retaliation allegation, other sex-based charges, and sexual harassment charges. This confirms our interpretation that most women experience retaliation after raising concerns with their employer, but that women who experience pregnancy discrimination are less likely to challenge, or have time to challenge, their employer over their treatment before filing a pregnancy related discrimination charge with the EEOC or FEPA.

Co-occuring bases

Table 2 shows the co-occurring bases for other (non-pregnancy) sex-based charges filed by women and for pregnancy discrimination charges. Nearly half (47%) of pregnancy discrimination allegations are filed exclusively on the basis of pregnancy. The most common co-occurring bases are sex (24% of pregnancy charges also include another sex-based charge), retaliation (23% of pregnancy charges), and disability (17% of pregnancy charges).

It is much more common for other (non-pregnancy) sex-based charges to contain addi- tional co-occurring bases. Only 25% of other sex-based charges are filed exclusively on the basis of sex. Over half (51%) of all other sex-based charges filed by women also include a retaliation charge, 24% include a race/color charge, and 18% include an age discrimination charge. Compared to other (non-pregnancy) sex-based charges filed by women, pregnancy- based charges have a much lower rate of retaliation—only 23% of pregnancy-based charges include a retaliation charge compared to 51% of other sex-based charges.

Table 3: Co-occurring Discrimination Bases

The lower rate of co-occurring bases may reflect the immediate salience of pregnancy status. 44 Whereas non-pregnancy-based sex discrimination may develop insidiously over time, once the employee discloses her pregnancy status it often quickly results in job loss. The high rate of firing based on pregnancy status may make employer retaliation less common since the employment relationship is ended relatively quickly upon the employer learning of the pregnancy. Previous research has also found that pregnancy discrimination cases typically result in an employee losing her job once she reports her pregnancy to her employer. 45

Co-occuring issues

Pregnancy discrimination charges are distinct from other charges of sex discrimination in that they are more commonly filed on a single basis and issue. Targets of pregnancy discrimination typically allege being fired as a result of their pregnancy. Table 3 shows the issues alleged for other sex-based charges filed by women and for pregnancy-based charges. Pregnancy charges are also more likely than other sex-based charges to include only one issue—46% of pregnancy charges include only one issue compared to 30% of other sex-based charges. This may reflect the more immediate response to pregnancy discrimination compared to other forms of discrimination–women report their pregnancy to their employer and subsequently lose their jobs. Of the charges filed on just one issue, the vast majority (71%) allege discharge.

In a study of pregnancy discrimination charges filed in Ohio, Byron and Roscigno also find high rates of firing in pregnancy discrimination charges. 46 They find that employers typically try to justify these firings by vilifying the employee or amplifying purportedly meritocratic policies or business/financial concerns. Employers, in such cases, tend to emphasize concerns about the target’s anticipated undependability due to family responsibilities and question their commitment to the job. A majority (75%) of plaintiffs in the reviewed cases asserted their job performance was questioned only after disclosing their pregnancies to their employers. 47 Employers also amplified “neutral meritocratic” policies as a way to fire pregnant employees, despite protections provided by law. 48 For example, in one case an employer insisted that all employees were covered by the same “neutral” policy where work related injuries were accommodated, but pregnancy was not. 49

Table 4: Time Frame of Pregnancy and Other Sex Based Allegations

Pregnancy discrimination charges are also three times more likely than other sex-based charges to allege that the employer did not provide a reasonable accommodation (12% versus 4% of charges). While the EEOC’s charge data do not contain information on what types of accommodation were requested, qualitative reviews of pregnancy discrimination charges have found that women most often request relief from heavy lifting, light duty (temporary reassignment to a different task), other physical restrictions such as no sitting or standing for long period of time, or periodic rest breaks. 50 When these requests are denied, the consequences can be severe, especially when women work in physically demanding jobs such as in factories, restaurants, and grocery stores. The New York Times reviewed instances in which women had been denied work accommodations and found that women subsequently suffered miscarriages, experienced premature labor, or even stillbirth. 51

Contexts That Produce Pregnancy Discrimination

This section examines the workplace contexts that are more likely to produce pregnancy discrimination charges. We focus on industry and firm characteristics by matching the discrimination charge data to EEO-1 employer reports. The EEOC collects annual data for private sector employers on the EEO-1 survey. Private employers with 100 or more employees and federal contractors with 50 or more employees and a contract of at least $50,000 are required to submit an EEO-1 report. The EEO-1 data include establishment-level records of the employer’s name and address, industry, federal contractor status, and employment totals by race, sex, and occupation. By matching the charge data to the EEO-1 employer report, we can compare the makeup of establishments charged with pregnancy discrimination to those who were not charged. For more information on the matching process, see the matching appendix .

Figure 1 : Discribution of Pregnancy and Other Sex-Based Charges by Industry

Although about half of all case processing reports are missing information on the industry of the workplace, we have found that industry appears to be missing randomly. 52 Thus, examining the distribution of charges by industry only for charges with industry information is not biased by the missing industry information. Figure 1 shows the distribution of pregnancy discrimination charges by industry compared to other sex-based charges filed by women. The majority of pregnancy discrimination charges are filed in only a few industries: health care, retail trade, and accommodation and food services. These are all industries with high levels of female employment and many low wage employees.

Prior research has found that women in low wage jobs are particularly vulnerable to pregnancy discrimination. 53 Low wage jobs are typically more physically demanding and thus require accommodations for pregnancy. At the same time, these jobs are also the most inflexible and least likely to offer employees paid sick, vacation, or medical leaves. 54 Unfortunately, the EEOC charge data do not contain information on the earnings or occupation of the charging party.

Health care and the social insurance industry account for the largest portion of pregnancy discrimination charges, producing nearly twice as many pregnancy discrimination charges as other sex-based charges. Although on average a high wage industry, many women in health care work as nursing care assistants and domestic care aides with median hourly earnings of $11.83 and $10.16 respectively. 55 This work is very physically demanding, often involving the necessary care of bathing, dressing, feeding, and moving patients. In fact, nursing assistants are 3.5 times as likely to be injured on the job as an average U.S worker. 56 The physical nature of these jobs may explain why pregnancy discrimination charges are filed so often in the health care industry. 57

Industries vary by their gender and age composition, and thus the number of pregnant workers at risk for discrimination. This affects the rate at which we would expect industries to produce pregnancy discrimination. Given that charges in our dataset only represent those who chose to pursue a charge, we have no way of knowing if rates of reporting reflect underlying rates of discrimination or are also influenced by industry variation in the quality of managerial responses to internal complaints. Acknowledging these limitations, we calculate rates of pregnancy discrimination charges by industry to the EEOC and the state FEPAs by dividing the number of pregnancy discrimination charges by an estimate of the number of pregnant workers in the industry. 58

Figure 2 : Pregnancy Discrimination Rate by Percent Female in Industry

In figure 2, we graph the estimated pregnancy discrimination rate against the proportion female in that industry. Transportation and warehousing has the largest pregnancy discrimination rate followed by wholesale trade, utilities, and manufacturing. These industries tend to include physically demanding jobs, which are likely to require an accommodation during pregnancy.  For example,  in its expos´e on pregnancy discrimination,  The New York Times interviewed workers in an XPO Logistics warehouse in Tennessee where multiple women suffered miscarriages after their accommodation requests were denied. 59

As figure 2 shows,  the estimated rate of pregnancy discrimination tends to decrease as the proportion female in the industry increases. Male dominated industries are less likely to employ a pregnant woman, but more likely to fire her when her pregnancy becomes known.

Workplaces, like industries, vary in their gender composition and their risk of producing pregnancy discrimination. To compare workplaces that are charged with pregnancy discrimination to workplaces that are not charged with pregnancy discrimination, we match establishments in our charge dataset with employer filed EEO-1 forms (for more information on this process, see the matching appendix ).

Previous literature has found that women’s risk of sex discrimination, and in particular sexual harassment, increases with the share of men in the workplace. 60 However, as we have already seen, pregnancy discrimination is a different form of sex discrimination and may not follow the same pattern. Our analysis finds that workplaces charged with pregnancy discrimination tend to be more female dominated compared to establishments not charged with pregnancy discrimination. Consistent with this pattern, in a study of pregnancy discrimination charges filed in Ohio, Byron and Roscigno find that “plaintiffs of pregnancy-based firing discrimination were more likely to be fired from female-dominated establishments and female-dominated occupations”. 61 We assume that much of this higher rate of pregnancy discrimination charges in more female workplaces reflects, as we saw for industry, that there are more women who become pregnant in these workplaces.

Research on pregnancy discrimination litigation has found that plaintiffs typically allege the discrimination they experience was from their supervisors, rather than their coworkers. 62 As such, the composition of management in a workplace may also be an important factor influencing the incidence of pregnancy discrimination. One might expect that more female managers in a workplace may help protect women from pregnancy discrimination.

Workplaces with more female managers, also tend to have more female workers overall. In order to control for the number of women at risk of facing pregnancy discrimination, we examine the number of women in a workplace and the gender composition of management. Figure 4 charts the proportion of managers who are female against the number of women in the workplace (on a logarithmic scale) for charged and non-charged establishments. After controlling for the overall number of women in a workplace, establishments charged with pregnancy discrimination tend to have a smaller proportion of managers who are female. This is observable in the scatter of red dots tending to lie below the blue dots in figure 4. Only in workplaces with very few female employees is there a pattern of higher pregnancy discrimination associated with more women managers. Generally, more male managers is associated with more pregnancy discrimination. It appears that more women in management may help prevent pregnancy discrimination.

Figure 3: Mean Proportion Female in Charged and Non-Charged Establishments: Pregnancy and Sexual Harassment Discrimination

Outcomes of pregnancy discrimination charges.

There are several routes to resolving employer discrimination charges, some of which can potentially lead to monetary and other benefits for the charging party. In many cases, the charge will be resolved through mediation before an investigation occurs or settled during the investigation.

Charges not settled in mediation proceed through the EEOC investigation process. If the EEOC finds reasonable cause that discrimination occurred, the parties are invited to participate in conciliation discussions to resolve the charge prior to litigation. If conciliation fails, the EEOC may decide to litigate, although this is a rare event. However, the rarity of litigation may benefit the charging parties in terms of saved time and emotional duress, as plaintiffs in employment discrimination cases win less than 25 percent of district court cases. 63 The outcomes examined in this section reflect discrimination charges in which the charging party did not withdraw her charge and thus proceeded through mediation, negotiation/settlement, or conciliation.

Table 5 shows the percent of charges filed by women that received any (monetary or nonmonetary) benefit by discrimination basis. Among non-pregnancy-based charges filed by women, between 16 and 22 percent of charges received a benefit. 64 Twenty-six percent of pregnancy charges received some benefit, the highest percent of all types of discrimination filed by women. This may be a result of the often direct and blatant nature of pregnancy discrimination, which may make employers more likely to settle disputes in favor of the charging party.

Table 5: Percent of Women Who Received a Benefit by Discrimination Basis

Most people who file discrimination charges do not receive any monetary or workplace benefit. At the same time, pregnancy charges stand out as more likely than other forms of discrimination to secure some benefit. About a quarter of women who file pregnancy charges and do not withdraw their charge, receive some benefit under this process. Black women are slightly less likely to receive a benefit. While 26% of all pregnancy discrimination charges receive a benefit, 25% of those filed by white women receive a benefit compared to 23% filed by black women, and 25% filed by women of other races. 65

The charges that proceed through mediation, conciliation, or (more rarely) court processes typically result in no compensation or a modest monetary compensation for the charging party. Very few cases lead to mandated changes at the workplace level that could help foster a more supportive environment for working mothers (see table 6). Almost 3 out of 4 (74%) pregnancy discrimination charges produce no benefit of either kind for the charging party.

Twenty-three percent of pregnancy discrimination charges produce some monetary benefit for the charging party, and 11% result in a required workplace-level change.  Nearly 9 out of 10 (89%) pregnancy charges do not lead to any required change in employer behavior or managerial practices.  Only eight percent of pregnancy discrimination charges lead to both a monetary benefit for the charging party and some negotiated change in workplace managerial practices.

Table 6 : Benefit Type for Pregnancy Discrimination Charges

Overall, charging parties who received monetary compensation for pregnancy charges were awarded $17,601 on average,  with a median award of only $7,500.   This is slightly less than the approximate $21,100 received on average for other sex-based charges filed by women. Large monetary benefits are very rare—less than 1% of charges resulted in monetary compensation over $100,000 (table 7). The amount of compensatory and punitive damages available to a target is limited based on the size of her employer.  According to the EEOC, the limit ranges from $50,000 for employers with 15-50 employees to $300,000 for employers with more than 500 employees. 66 Thus, the benefits received tend to be much lower than the maximum benefit available.

Compensation was higher for the 19% of those who filed a pregnancy discrimination charge and were represented by legal counsel ($33,427 on average). However, lawyers typically get a third of any settlement, reducing the added monetary value of representation. There is both a small monetary benefit to securing legal counsel and a higher probability (34% vs. 21%) of receiving a monetary settlement. It is unclear if this represents the efficacy of legal representation or that lawyers are more likely to take cases with a high probability of success. 67

Those represented by counsel are also more likely to allege job loss and retaliation. While 20% of those not represented by counsel alleged employer retaliation, 38% of those with representation alleged employer retaliation. Additionally, 72% of those not represented by legal counsel alleged job loss compared to 83% of those represented by counsel.

Table 7 : Monetary Benefits for Pregnancy Discrimination Charges by Legal Representation Status

Overall, charging parties in pregnancy discrimination complaints typically receive modest or no monetary settlements and no change in their workplace. Those who lost their job are only very slightly more likely to receive a monetary benefit, an average of $17,601, which is unlikely to make up for the economic cost of the job loss, much less the added expenses of raising a child.

The benefit the target receives appears to depend on the process of resolving the charge. Table 8 reports the breakdown of benefit outcomes by three types of charge resolution processes. Settlement with benefits reflect instances where charges are “settled with benefits to the charging party as warranted by evidence of record”, successful conciliations are instances where “charges with reasonable cause determination [by the EEOC are] closed after successful conciliation”, and withdrawal with benefits are instances where the “charge is withdrawn by charging party upon receipt of desired benefits. The withdrawal may take place after a settlement or after the employer grants the appropriate benefit to the charging party”. 68

Overall, successful conciliations result in the largest monetary benefits as well as a very large proportion of workplace benefits. We think the latter is a particularly important result, as this is an opportunity to change employer behavior. Monetary damages are so low that we do not think they represent much of a threat to most employers. Unfortunately, successful conciliation agreements are much less common than the other closure types, only about 2% of closed charges ended in a successful conciliation compared to 15% that ended in a settlement with benefits and 13% that ended in a withdrawal with benefits.

Importantly, the conciliation process takes considerably longer. While on average pregnancy discrimination charges are closed in 280 days, successful conciliation cases take on average 660 days to close compared with withdrawals and settlements which each take approximately 220 days on average to close. If women do not reveal their pregnancy until the middle or end of the first trimester, which seems likely, then most resolutions happen after the pregnancy has ended.

Table 8: Pregnancy Discrimination Benefits by Closure Type for all Charges with Benefits

Conclusions and recommendations.

While prior research has tended to focus on a small subset of pregnancy discrimination charges, or those charges that proceed to litigation, our report examines all pregnancy discrimination charges filed with the EEOC or state FEPAs between 2012 and 2016. Our analysis highlights pregnancy discrimination as a unique form of sex discrimination. While other forms of sex discrimination tend to develop insidiously over time, pregnancy discrimination is often a quick and direct managerial response to the discovery of an employee’s pregnancy and typically results in rapid job loss. Though more likely to result in benefits to the charging party than other forms of discrimination, only a quarter of charges result in benefits—typically a modest monetary amount, and rarely required changes in managerial practices.

We find that male dominated industries tend to have higher rates of pregnancy discrimination charges. Our unique data set matched to the EEO-1 employer reports allows us to examine the gender composition of the workforce and managers of workplaces charged with pregnancy discrimination compared to workplaces not charged with discrimination. Unlike sexual harassment, which is more common in male dominated workplaces, female dominated workplaces are more likely to be charged with pregnancy discrimination. We also find evidence that, once accounting for the total number of women in the workplace, establishments charged with pregnancy discrimination tend to have more male mangers. These findings are an initial step to better understanding the contexts of pregnancy discrimination, which our future work will explore with more formal econometric modeling.

Our report provides a starting point for further research to better understand the patterns and contexts of employer pregnancy discrimination. However, some questions raised from this work suggest changes to the current EEOC data collection process. For example, the current charge discrimination data does not collect occupation, current wage/benefits, or job tenure data from the charging party, which would provide a more nuanced analysis of women experiencing pregnancy and other forms of discrimination. The EEOC also does not collect information on the alleged source of discrimination, such as co-workers, supervisors, personnel departments, or upper managers/owners. Since a goal of EEOC enforcement is to reduce the incidence of discrimination in the U.S. labor force, such data would permit a clearer picture of the actors and contexts involved. Such data collection would directly enhance the EEOC’s ability to understand and redress employment discrimination.

The somewhat higher monetary damages associated with a successful conciliation process and the much higher rates of workplace benefits argues for an expansion of the conciliation process. Unfortunately, this process is expensive and the EEOC currently lacks the resources to expand these efforts. One potential solution would be for conciliation agreements to include a payment to the EEOC to cover expenses. Such practices are widespread in other regulatory agencies and would shift the funding burden from taxpayers to the employers charged with discrimination.

Overall, our report reinforces that pregnancy discrimination remains a persistent problem for many women in their workplaces. Pregnancy discrimination is partially rooted in business practices and enduring cultural beliefs regarding women, particularly pregnant women. Though there are legal structures in place intended to protect pregnant workers, it is important to consider whether these policies do enough. As described earlier, some activists argue that the current Pregnancy Discrimination Act does not do enough to protect pregnant workers and argue for a federal level Pregnant Workers Fairness Act, which would explicitly require pregnancy to be accommodated to the same degree as any other disability.

Passing the Pregnant Workers Fairness Act (PWFA) is an important first step in closing the legal coverage gap between the PDA and the ADA for pregnant workers and will expand the legal coverage available to women who experience pregnancy discrimination. However, it may not be enough to truly help pregnant workers retain employment during and after their pregnancies. Some have argued that adopting the ADA reasonable accommodation model, which requires employers to provide accommodations, may have unintended consequences for pregnant workers. Because this model requires employers to provide accommodations, employers may seek to avoid these costs by not employing pregnant women or women who may become pregnant. 69   As more states implement state level PWFA laws, future research should examine whether these laws affect the number and outcomes of charges filed, and whether they help pregnant women remain employed.

1 National partnership for women & families. Listening to Mothers: The Experiences of Expecting and New Mothers in the Workplace.    http://www.nationalpartnership.org/our- work/resources/economic- justice/pregnancy-discrimination/listening-to-mothers-experiences-of-expecting-and-new- mothers.pdf. 2014.

2 jessica silver-greenberg and natalie kitroeff. miscarrying at work: the physical toll of pregnancy discrimination. october 21, 2018. url: https : / / www . nytimes . com / interactive / 2018 / 10 / 21 / business/pregnancy-discrimination-miscarriages.html., 3 natalie kitroeff and jessica silver-greenberg. pregnancy discrimination is rampant inside america’s biggest companies.   february  8,  2019.   url:   https:// www.nytimes.com/interactive/2018/06/15/ business/pregnancy-discrimination.html., 4 natalie kitroeff and jessica silver-greenberg. planned parenthood is accused of mistreating pregnant employees.   december  20,  2018.   url:   https:// www.nytimes.com/2018/12 / 20 / business/ planned- parenthood-pregnant-employee-discrimination-women.html., 5 elizabeth gedmark bakst dina and sarah brafman. long overdue: it is time for the federal pregnant workers fairness act. tech. rep. a better balance.  , 6 deborah dinner. “recovering the lafleur doctrine”. in: yale jl & feminism 22 (2010), p. 343, 7 joanna l grossman. nine to five: how gender, sex, and sexuality continue to define the american workplace. cambridge university press, 2016., 8 geduldig v. aiello. 417 u.s. 484. 1974., 9 general electric co v. gilbert. 429 u.s. 125. 1976., 10 grossman, nine to five: how gender, sex, and sexuality continue to define the american workplace, op. cit., p. 499., 11 u.s. eeoc (equal employment opportunity commission). pregnancy discrimination act of 1978. https://www.eeoc.gov/laws/statutes/pregnancy.cfm . [online; accessed 9/9/19]. n.d.-a., 13 u.s. eeoc (equal employment opportunity commission). fact sheet for small businesses: pregnancy discrimination.   https:// www. eeoc. gov/ eeoc/ publications/ pregnancy_factsheet. cfm.   [online; accessed 9/9/19]. n.d.-b., 14 gillian thomas. because of sex: one law, ten cases, and fifty years that changed american women’s lives at work. picador usa, 2017., 15 u.s. eeoc (equal employment opportunity commission), fact sheet for small businesses: pregnancy discrimination, op. cit., 16 michelle d deardorff and james g dahl. pregnancy discrimination and the american worker. springer, 2016, p. 131., 17 ibid., pp. 131-132., 18 see for example deardorff and dahl, pregnancy discrimination and the american worker or dinner, strange bedfellow, or thomas, because of sex, 19 young v. united parcel serv., inc. 135 s. ct. 1338. 2015., 20 thomas, because of sex: one law, ten cases, and fifty years that changed american women’s lives at work, op. cit., p. 227., 21 bakst and brafman, long overdue: it is time for the federal pregnant workers fairness act, op. cit., 22 national partnership for women & families. reasonable accommodations for pregnant workers: state and local laws.    https://www.nationalpartnership.org/our- work/resources/economic- justice/ pregnancy- discrimination/reasonable- accommodations- for- pregnant- workers- state- laws.pdf. [online; accessed 7/21/20]. may 2020., 23 lynda lvonne laughlin. maternity leave and employment patterns of first-time mothers: 1961-2008. tech. rep. us department of commerce, economics and statistics administration, 2011., 24 national partnership for women & families, listening to mothers: the experiences of expecting and new mothers in the workplace, op. cit., 26 carly mccann, donald tomaskovic-devey, and lee badgett. “employers’ responses to sexual harass- ment”. in: center for employment equity (2018)., 27 charges filed with either the eeoc or a fepa are dual filed, so the eeoc database includes charges filed with a local fepa, but the fepa retains the charge for processing. in the course of this research we discovered that california does not report all complaints to the eeoc. many of the charges filed with fepas and submitted to the eeoc do not include data on the race, sex, or other demographic characteristics of the charging party. for more on fepas, see u.s. eeoc (equal employment opportunity commission). fair employment practices agencies(fepas) and dual filing.  https://www.eeoc.gov/employees/fepa.cfm . [online; accessed 9/7/19]. n.d.-c, 28 u.s.  eeoc (equal employment opportunity commission).  resolving a charge.  https://www.eeoc . gov/employers/resolving.cfm. [online; accessed 9/7/19]. n.d.-d. , 29 u.s. eeoc (equal employment opportunity commission). title vii of the civil rights act of 1964 charges (charges filed with eeoc). https://www.eeoc.gov/eeoc/statistics/enforcement/titlevii . cfm. [online; accessed 9/7/19]. n.d.-e., 30 u.s.  eeoc (equal employment opportunity commission).  definition of terms.  https://www.eeoc . gov/eeoc/statistics/enforcement/definitions.cfm. [online; accessed 9/7/19]. n.d.-f., 31 in some states, charges filed with the fepa are given the right to appear in a public hearing presided over by a public law judge. the law judge evaluates the case and issues a final order either dismissing or upholding the case. if the case is upheld, the law judge also decides whether to issue mandates., 32 among charges in which the eeoc believes discrimination occurred and conciliation was unsuccessful, the eeoc files a lawsuit in less than 8% of charges. see u.s. eeoc (equal employment opportunity commission).  what you should know:  the eoc, conciliation, and litigation.  https://www.eeoc.gov/ eeoc/newsroom/wysk/conciliation_litigation.cfm. [online; accessed 9/7/19]. n.d.-g, 33 u.s. eeoc (equal employment opportunity commission). fact sheet on recent eeoc pregnancy- discrimination litigation. https : / / www . eeoc . gov / fact - sheet - recent - eeoc - pregnancy - discrimination-litigation. [online; accessed 9/9/19]. n.d.-k., 34 deardorff and dahl, pregnancy discrimination and the american worker, op. cit., p. 64., 35 ibid., p. 65., 36 ibid., p. 67., 37 less than 1% of charges in our database were filed by men. these charges likely represent cases were men filed charges due to benefits denied to their pregnant spouses. in their analysis of pregnancy discrimination lawsuits, deardorff and dahl also find about 1% of cases had male litigants, generally involving spousal benefits.  because we compare pregnancy to other sex-based charges filed by women, we dropped these charges in our analysis. results are not sensitive to this restriction., 38 data on labor force participation come from the bureau of labor statistics. see labor force statistics from the current population survey. employment status of the civillian noninstitutional population by age, sex, and race. https://www.bls.gov/cps/cpsaat03.htm . [online; accessed 9/7/19]. january 18, 2019, 39 julie vogtman. nearly one in five working mothers of very young children work in low-wage jobs. april 12,2017. url: . https://nwlc.org/blog/nearly- one- in- five- working- mothers- of- very- young-children-work-in-low-wage-jobs/., 40 nora ellmann and jocelyn frye. efforts to combat pregnancy discrimination. november 2,2018. url: . https://www.americanprogress.org/issues/women/news/2018/11/02/460353/eff... combat- pregnancy-discrimination/., 41 see reginald a byron and vincent j roscigno. “relational power, legitimation, and pregnancy dis- crimination”. in: gender & society 28.3 (2014), pp. 435–462 and stephanie bornstein. poor, pregnant, and fired: caregiver discrimination against low-wage workers. center for worklife law, 2011, 42 u.s.  eeoc (equal employment opportunity commission).  sexual harassment.  https://www.eeoc . gov/laws/types/sexual_harassment.cfm. [online; accessed 9/7/19]. n.d.-h.  additionally, although there are limitations on when a target must file a charge (typically within 180 or 300 days of the incident), the eeoc considers all incidents of harassment,  even if the earlier harassment occurred more than 300 days earlier. for more information, see u.s. eeoc (equal employment opportunity commission). time limits for filing a charge.    https://www.eeoc.gov/employees/timeliness.cfm.   [online;  accessed  9/7/19]. n.d.-i, 43 chai r. feldblum and victoria a. lipnic. select task force on the study of harassment in the workplace. tech. rep. u.s. eeoc (equal employment opportunity commission)., 44 additionally, pregnant women tend to be younger and heterosexual, thus removing some of the possible co-occurring bases., 45 deardorff and dahl, pregnancy discrimination and the american worker, op. cit., p. 62., 46 byron and roscigno, “relational power, legitimation, and pregnancy discrimination”, op. cit., 47 ibid., p. 448., 48 ibid., p. 452., 49 deardorff and dahl, pregnancy discrimination and the american worker, op. cit., p. 453., 50 jamie dolkas farrell noreen and mia munro. expecting a baby, not a lay-off: why federal law should require the reasonable accommodation of pregnant workers. tech. rep. equal rights advocates, 2012., 51 silver-greenberg and kitroeff, miscarrying at work: the physical toll of pregnancy discrimination, op. cit., 52 data are missing at random  when there  is  no systematic correlation with any  other know trait  (see daniel f heitjan and srabashi basu. “distinguishing missing at random and missing completely at random”. in: the american statistician 50.3 (1996), pp. 207–213). charges that were missing industry information tended to have the same characteristics examined in this report as charges with industry present ( see missing industry appendix at end of report) ., 53 bornstein, poor, pregnant, and fired: caregiver discrimination against low-wage workers, op. cit., 54 see bakst and brafman, long overdue: it is time for the federal pregnant workers fairness act, op. cit.; bornstein, poor, pregnant, and fired: caregiver discrimination against low-wage workers, op. cit.; and joan williams and heather boushey. “the three faces of work-family conflict: the poor, the professionals, and the missing middle”. in: available at ssrn 2126314 (2010), 55 elyse shaw, ariane hegewisch, emma williams-baron, and barbara gault. undervalued and underpaid in america. tech. rep. institute for women’s policy research., 56 ibid., p. 11., 57 unfortunately, the eeoc charge data do not collect information on occupation., 58 we first took the total number of pregnancy discrimination charges in the eeoc’s 2012-2016 database. industry is missing in 61% of charges. assuming that industry is missing at random we inflate each industry count by dividing by .61. from the national health interview survey (nhis) we calculate the percent of pregnant women working in each industry. we use bureau of economic analysis (bea) estimates of full-time equivalent employees in each industry. the bea uses employer data to adjust for probable self-report error in industry of employment in household surveys such as the acs. we also reason that discrimination charges are less likely from part-time employees, making full-time equivalent a more attractive operationalization of total industry employment. we estimate the employment for pregnant workers by multiplying total female bea employment by nhis 2012-2016, divided by total five-year full-time pregnant worker employment, times 100,000. our estimated denominator—the number of pregnant women in an industry —has a larger standard error for industries with few female employees in the nhis data. this likely explains the more dispersed pattern for industries with low female representation in figure 2., 59 silver-greenberg and kitroeff, miscarrying at work: the physical toll of pregnancy discrimination, op. cit., 60 heather mclaughlin, christopher uggen, and amy blackstone. “sexual harassment, workplace author- ity, and the paradox of power”. in: american sociological review 77.4 (2012), pp. 625–647., 61 byron and roscigno, “relational power, legitimation, and pregnancy discrimination”, op. cit., p. 444., 62 deardorff and dahl, pregnancy discrimination and the american worker, op. cit., p. 75. , 63 ibid., p. 76., 64 outcomes were analyzed only for allegations that were closed for reasons other than administrative closure, 77% of all title vii charges filed by women were non-administrative closure charges and 75% of pregnancy charges were closed by december 31, 2016., 65 race is frequently unreported in the charge database, 40% of pregnancy charges are missing race infor- mation, 29% of these charges receive a benefit. , 66 u.s. eeoc (equal employment opportunity commission). remedies for employment discrimination. https://www.eeoc.gov/employers/remedies.cfm . [online; accessed 9/7/19]. n.d.-j., 67 past research reports that the employment lawyers reject up to 90% of potential discrimination cases (see ellen berrey, robert l nelson, and laura beth nielsen. rights on trial: how workplace discrimination law perpetuates inequality. university of chicago press, 2017) , 68 u.s. eeoc (equal employment opportunity commission), definition of terms, op. cit. , 69 jennifer bennett shinall. “the pregnancy penalty”. in: minn. l. rev. 103 (2018), p. 749., view fuzzy matching appendix and industry appendix.

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• BMJ Glob Health
• v.7(8); 2022

Racial discrimination and adverse pregnancy outcomes: a systematic review and meta-analysis

Kim robin van daalen.

1 Cardiovascular Epidemiology Unit, Department of Public Health and Primary Care, Cambridge University, Cambridge, UK

Jeenan Kaiser

2 Faculty of Medicine & Dentistry, University of Alberta, Edmonton, Alberta, Canada

Samuel Kebede

3 Department of Medicine, Albert Einstein College of Medicine, Bronx, New York City, USA

Gabriela Cipriano

4 Cayetano Heredia University, Lima, Peru

Hassan Maimouni

5 University of East Anglia, Norwich, UK

Ekiomoado Olumese

6 Vanderbilt University School of Medicine, Nashville, Tennessee, USA

Anthea Chui

7 School of Clinical Medicine, University of Cambridge, Cambridge, UK

8 Medical Library, School of Clinical Medicine, University of Cambridge, Cambridge, UK

Clare Oliver-Williams

Associated data.

bmjgh-2022-009227supp001.pdf

All data relevant to the study are included in the article or uploaded as supplementary information.

Introduction

Racial discrimination has been consistently linked to various health outcomes and health disparities, including studies associating racial discrimination with patterns of racial disparities in adverse pregnancy outcomes. To expand our knowledge, this systematic review and meta-analysis assesses all available evidence on the association between self-reported racial discrimination and adverse pregnancy outcomes.

Eight electronic databases were searched without language or time restrictions, through January 2022. Data were extracted using a pre-piloted extraction tool. Quality assessment was conducted using the Newcastle–Ottawa Scale (NOS), and across all included studies using the Grading of Recommendations Assessment, Development and Evaluation (GRADE) approach. Random effects meta-analyses were performed on preterm birth and small for gestational age. Heterogenicity was assessed using Cochran’s χ 2 test and I 2 statistic.

Of 13 597 retrieved records, 24 articles were included. Studies included cohort, case–control and cross-sectional designs and were predominantly conducted in the USA (n=20). Across all outcomes, significant positive associations (between experiencing racial discrimination and an adverse pregnancy event) and non-significant associations (trending towards positive) were reported, with no studies reporting significant negative associations. The overall pooled odds ratio (OR) for preterm birth was 1.40 (95% CI 1.17 to 1.68; 13 studies) and for small for gestational age it was 1.23 (95% CI 0.76 to 1.99; 3 studies). When excluding low-quality studies, the preterm birth OR attenuated to 1.31 (95% CI 1.08 to 1.59; 10 studies). Similar results were obtained across sensitivity and subgroup analyses, indicating a significant positive association.

These results suggest that racial discrimination has adverse impacts on pregnancy outcomes. This is supported by the broader literature on racial discrimination as a risk factor for adverse health outcomes. To further explore this association and underlying mechanisms, including mediating and moderating factors, higher quality evidence from large ethnographically diverse cohorts is needed.

What is already known on this topic

• When assessing subjective (self-reported) and objective health outcomes in cross-sectional and longitudinal studies, consistent associations have been found between racial discrimination and poor health outcomes.
• Similarly, racial disparities in pregnancy outcomes may be rooted in social factors, such as perceived racial discrimination.
• However, thus far, limited research has assessed the total evidence on the impact of racial discrimination on adverse pregnancy outcomes.

What this study adds

• As racial and/or ethnic disparities worsen or persist in fetal, neonatal and maternal health outcomes, with racialised people experiencing worse outcomes, it is pertinent to identify and address the underlying causal and mediating factors of these disparities, beyond traditional biomedical risk factors.
• This systematic review and meta-analysis expands our understanding of the mechanisms by which racism creates health disparities by examining the available peer-reviewed evidence base on the impact of perceived or self-reported racial discrimination on adverse pregnancy outcomes, including low birth weight, very low birth weight, small for gestational age, preterm birth and hypertensive disorder of pregnancy.

How this study might affect research, practice or policy

• In accordance with evidence on other health outcomes, our review highlights that racial discrimination has adverse impacts on pregnancy outcomes.
• To further explore this association and its underlying mechanisms, including mediating and moderating factors, higher quality evidence on fetal, neonatal and maternal health outcomes using a life course approach and large ethnographically diverse cohorts is needed.

James Marion Sims, a controversial 19th-century figure often credited as the ‘Father of Gynaecology,’ developed revolutionary tools and surgical techniques used in modern obstetrics and gynaecology, most notably the Sims’ speculum. However, he was also a known racist, conducting experiments needed for these developments on unconsenting enslaved black women without anaesthesia, 1 2 placing these experiments among the likes of the Tuskegee syphilis experiment 3 and Henrietta Lacks 4 in a long history of unethical experimentation and exploitation of racial minorities. Today, instruments continue to bear his name in routine obstetrics and gynaecology practice, 1 2 with more broadly embedded racism continuing to translate to worse pregnancy outcomes among racialised communities.

Maternal mortality rates among black and indigenous women in the USA are 2–3 times higher than in white women. 5 Similarly, in the UK, maternal mortality rates are 2–4 times higher among black and Asian women compared with white women. 6 For several decades, race has been recognised in the literature and medical/public health curricula as a social determinant of health and a risk factor for numerous diseases. 7–10 During COVID-19, societal inequalities were brought to the forefront by exacerbating existing health inequities and injustices disproportionately affecting racialised populations. 11–14 Historical attempts to explain racial and/or ethnic disparities in health have explored differential expressions of genetic and biological factors. However, health disparities between population groups cannot simply be explained by biological factors alone. 15 Evidence increasingly suggests that upstream social, environmental, economic and political factors are fundamental drivers of health inequities, and that it is often not race, but racism, that is largely the root cause of racialised health disparities. A recent study examined the relationship between self-identified race and socially assigned race with general health status. The results indicated that among Hispanic, indigenous and mixed-race individuals, those who were perceived by others as being white experienced significantly better health than those perceived as being non-white. As health disparities persisted between seemingly white and non-white racialised individuals despite belonging to a shared racial background, this suggests that social factors such as racial discrimination may play an important role in determining health outcomes. 16

Race is a socially constructed category that impacts health through race-associated differences in individuals’ material conditions, access to resources, experiences, opportunities and interactions within society. Racism is a system of structuring opportunity and assigning value based on the social interpretation of an individual’s perceived ‘race’ that disadvantages some individuals and communities while advantaging others. A growing body of epidemiological evidence documents the health impacts of racism. 17 A meta-analysis of 293 studies reported that racism was associated with poorer general, physical and mental health, without being moderated by age, sex, birthplace or education level. 18 Other studies have found similar results. 19–21

In particular, disparities in fetal, neonatal and maternal health outcomes have been reported, with racialised women experiencing worse outcomes. While racialised socioeconomic disparities can be linked to upstream structural racism, stark disparities persist between non-white and white individuals of a similar socioeconomic background. An American integrative review in 2015 reported that the majority of studies found a relationship between racial discrimination and pregnancy outcomes, even after accounting for socioeconomic status. 22 Moreover, although it has been demonstrated that black women with higher educational attainment have better outcomes than black women with lower educational attainment, they continue to have worse outcomes than white women with lower educational attainment. 23 Thus, the impacts of institutional and interpersonal (ie, personally mediated) racism may more directly relate to disparities in pregnancy outcomes. 24–26

While studies suggest that existing patterns of racial disparities in pregnancy outcomes are rooted in social factors like perceived racial discrimination, the cumulative peer-reviewed evidence base on racial discrimination has, thus far, not been comprehensively synthesised and assessed. Therefore, to expand our understanding of the mechanisms, this systematic review and meta-analysis assesses the association between perceived racial discrimination and adverse pregnancy outcomes.

Search strategy and selection criteria

The study protocol was registered prospectively with PROSPERO ( https://www.crd.york.ac.uk/prospero/ ) (CRD42020224691). Findings were reported following the Preferred Reporting Items for Systematic Reviews and Meta-Analyses (PRIMSA) guidelines ( online supplemental table 4 ). 27 For this systematic review, we searched eight electronic databases (PubMed, Medline, EMBASE, Scopus, CINAHL, Web of Science, PsycINFO, and SocINDEX), without language or lower bound year restrictions, to 19 November 2020. An updated search was conducted on 11 January 2022. Using a controlled vocabulary, we applied search terms related to ‘pregnant women’, ‘racial discrimination’, and ‘adverse pregnancy outcomes’, informed by previous reviews 18 28 29 and a medical information specialist (IK). The full search strategy is provided in online supplemental table 1 . We cross-referenced bibliographies of relevant publications (eg, reviews, reports) and the included studies in the full-text screening to identify any additional eligible studies.

Supplementary data

For this study, we focused on self-reported/perceived racial discrimination. Following previous studies, 30 perceived discrimination is defined as discrimination perceived or experienced by members of a certain group. This includes unjust behaviour, attitude, judgement or treatment experienced by a racial group. 31 Events that the law deems ‘not discriminatory’ can still be perceived as discriminatory, therefore these were also included in our definition of perceived discrimination. 30 32 Likewise, events deemed discriminatory by law may have been excluded if they were not experienced as discriminatory by the individual. 30 32 Perceived discrimination can take various forms, including personal or institutional level, conscious or unconscious, and subtle or direct. 33

We included both neonatal and maternal adverse pregnancy outcomes, including preterm birth (PTB), low birth weight (LBW) and hypertensive disorder of pregnancy (HDP). A full list is given in online supplemental table 2 .

Study selection

Studies that met the inclusion criteria were peer-reviewed quantitative studies which (1) reported on the association between self-reported discrimination and adverse pregnancy outcomes, (2) included a measure of perceived/self-reported racial discrimination, race prejudice or racism as an exposure, (3) reported at least one adverse pregnancy outcome, and (4) were conducted on pregnant women or women who were previously pregnant. Studies were excluded if they were (1) non-human studies, conference proceedings, reviews, (2) lacking a full text, or (3) on biological males or girls under 16 years of age.

Studies were selected in two stages. After removing duplicates, abstracts and titles were double-screened using the selection criteria by eight researchers using the software Rayyan ( https://rayyan.ai/ ). In the second stage, full texts of studies that met the selection criteria were retrieved and double-screened by eight researchers. Any disagreements between researchers were discussed among two authors until consensus was reached. Non-English papers were translated or reviewed by a native/fluent speaker of the research team.

Data extraction

Data from included studies were independently extracted by five researchers using a pre-piloted extraction tool. The following information was extracted for each study: author, year, study title, study design, study population and characteristics (eg, age, country), recruitment procedures used, total number of participants, number of controls, definition and ascertainment of racial discrimination (eg, experience of discrimination scale, racism and lifetime experience scale), number of individuals categorised as experiencing discrimination, adverse pregnancy outcome(s) reported, ascertainment of outcome(s), percentage/N of individuals with outcome, association measures, adjusted variables and an open field for additional information. When relevant information could not be obtained from four articles, authors were contacted.

Study quality assessment

Three researchers independently assessed the quality of individual studies using the Newcastle–Ottawa Scale (NOS) to assess risk of bias. 34 The final score was converted to Agency for Healthcare Research and Quality (AHRQ) standards of good, fair and poor (see online supplemental figures 1–3 ). To assess the risk of bias across all included studies, the Grading of Recommendations Assessment, Development and Evaluation (GRADE) approach was applied. 35 Evidence from observational studies starts at low quality due to residual confounding and bias, among other issues. When serious study limitations were identified, the evidence was downgraded by one level. These limitations included imprecision in effect estimates, serious inconsistency, risk of bias, potential publication bias and indirectness of evidence. Any disagreements between researchers were discussed among two authors until consensus was reached. Due to the limited and heterogenous evidence base, no studies were excluded from the research synthesis based on their assessed quality.

Meta-analysis

To be included in the meta-analysis, studies had to report an estimated measure of association (eg, odds ratio (OR), hazard ratio (HR), relative risk (RR), prevalence ratio (PR), correlation or β coefficients), or sufficient information to calculate a measure. One researcher explored whether articles reported sufficient data to be included in meta-analyses, and all excluded articles were discussed with a second researcher. At least three studies needed to report on the same outcome in order to be included. A narrative synthesis by adverse pregnancy outcome was conducted for studies excluded from the meta-analysis.

The most commonly used metric for measuring association was OR and 95% CI in the papers reviewed, and was employed as the measure of effect size in the meta-analyses. As PRs and HRs are not necessarily interchangeable with ORs, other measures of association were converted to ORs, or unadjusted ORs were calculated based on the studies’ available data. Unadjusted ORs were computed with the available information for the studies by Braveman et al , 36 Slaugther-Acey et al , 37 Misra et al 38 and Fryer et al . 39 When both unadjusted and adjusted ORs were available, we pooled the adjusted ORs. We took this approach even when ORs were adjusted for different variables, as it is more likely that adjusted effect estimates are representative of the true effect than crude ORs.

Meta-analyses for PTB and small for gestational age (SGA) were conducted with STATA Version 16 and 17 (StataCorp, Texas, USA) using the meta-set, meta-forestplot, meta-funnelplot and meta-bias commands. 40 Due to the anticipated heterogeneity between studies, a Der Simonian and Laird random effects meta-analysis was performed. To quantify heterogeneity we used Cochran’s χ 2 test and generated an I 2 statistic as a percentage of variability. I 2 values of 75%, 50% and 25% correspond to high, moderate and low heterogeneity. 41 Two-tailed p values <0.05 were considered statistically significant, except where otherwise specified.

We conducted several sensitivity analyses. The meta-forestplot leaveoneout command was used to explore the influence of individual studies on the pooled effect size. 40 Further sensitivity analyses were performed on (1) crude ORs of included studies (for those that had crude ORs available or which could be calculated), (2) fair and good quality studies, (3) subgroups of participant race or ethnicity, and (4) reported adjusted HRs, PRs and ORs as approximates of each other (instead of the computed crude ORs). Under the rare disease assumption, OR and RR may be used as approximates of each other 42 and HR may be considered as an extension for uncommon outcomes. 43 44

The influence of publication bias was assessed using the Begg’s and Egger’s test (p<0.10 representing statistical significance), 45 and graphically using (contour-enhanced) funnel plots. This was done for outcomes with a minimum of 10 unique included studies. 46 We used a non-parametric trim-and-fill method to estimate the number of studies potentially missing due to publication bias and to provide bias-adjusted results. This method is based on the assumption that there should be a symmetrical funnel plot. 47 48

Patient involvement

No patients were involved in the conceptualisation or conduct of this study due to the nature of the study as a systematic review.

Characteristics of the included studies

A total of 11 076 publications were retrieved from the databases in the first run and 2521 in the second run ( figure 1 ). After removing duplicates, 6278 studies were screened by title and abstract and 70 by full text. Twenty-four articles were included in this review with summary characteristics reported in table 1 and results in table 2 . 36–39 49–68 Most studies were conducted in the USA (n=20), 36–39 49 50 52 54–58 60–63 65–69 and four studies were conducted in other countries: Germany (n=1), 51 Australia (n=1), 59 New Zealand (n=1), 53 Serbia (n=1) 64 and Macedonia (n=1). 64 Included studies had a cohort design (n=14), 37–39 49–59 case–control design (n=4) 60–63 or cross-sectional design (n=6). 36 64–68 The number of included participants ranged from 39 70 to 9470. 58 Although no time restrictions were applied, all studies were published after 1999. Study periods ranged from 1992 49 to 2016. 51

PRISMA flow diagram of search strategy. 27

Summary characteristics of included documents

GA, gestational age; LBW, low birth weight; LMP, last menstrual period; NICU, newborn intensive care unit; NR, not reported; PTB, preterm birth; SGA, small for gestational age; US, ultrasound; VLBW, very low birth weight.

Results of included studies

*These unadjusted ORs were computed with the available information in the study.

BMI, body mass index; EOD, experience of discrimination; HBW, high birth weight; HDP, hypertensive disorder of pregnancy; LBW, low birth weight; LGA, large for gestational age; PR, prevalence ratio; PTB, preterm birth; RR, relative risk/risk ratio; SGA, small for gestational age; UT, unfair treatment; VLBW, very low birth weight.

Quality assessment of individual studies and overall evidence

The results of individual NOS quality appraisals are available in online supplemental figures 1–3 . Studies were of good (n=12), 37–39 50 52–56 58 64 65 fair (n=2) 36 68 or poor AHRQ standard quality (n=10). 49 51 57 59–63 66 67 While most cohort studies were of good AHRQ standard quality (n=10), 37–39 50 52–56 58 all case–control studies were assessed to be of poor quality (n=4). 60–63 Only one cross-sectional study justified their sample size 65 and only one case–control study included representative cases. 61 Due to the nature of cross-sectional 36 64–68 and case–control studies, 60–63 they are especially prone to biases (eg, non-response bias, recall bias). 71

Details of the risk of bias grading across studies using GRADE and outcomes based on this current review are shown in online supplemental table 3 . The overall quality of evidence was found to be of very low (PTB, LBW, SGA) and low quality (HDP) due to the observational study designs of the majority of studies and the low individual study quality assessed using NOS ( online supplemental figures 1–3 ).

Racial discrimination

Racial discrimination was ascertained through several questionnaires and scales which were either previously validated or developed for the specific research study. This included adapted versions of the Experiences of Discrimination Scales (EDS) developed by Krieger et al (n=11) 49 54–58 62 63 65–67 and McNeilly et al (n=2), 61 63 the Racism and Lifetime Experiences Scale (RaLES) (n=2), 38 52 RaLES Daily Life Experiences Scale (n=2), 37 38 Racism-Related Experiences Scale (RRE) (n=1), 38 Everyday Discrimination Scale (EDS) developed by Williams et al (n=2), 39 64 adapted Indigenous Racism Experience questionnaire (n=1), 59 a single-item question on the frequency of perceived discrimination (n=2) 51 68 or chronic worry about racial discrimination (n=1), 36 items on the Growing Up in New Zealand questionnaire (n=1) 53 and other developed questionnaires assessing racial discrimination (n=2). 50 60 Some studies focused on the lifetime experience of racism (n=12) 36 38 49 52 54 55 58 61 62 65–67 while others focused on daily or recent experiences of racism, including during pregnancy or perinatal care (n=12). 37–39 50 51 54 57 59–61 64 68 Women included in the studies were described to be of different racial and ethnic backgrounds, including black or African-American, 36–39 49 50 52 54–58 60–63 65–68 Hispanic, 38 39 55 58 68 non-Hispanic white, 36 49 51 54 57 58 67 68 Mãori, 53 Pacific, 53 Asian, 53 55 58 Aboriginal, 59 Romani, 64 German autochtonous 51 and Turkish. 51

Adverse pregnancy characteristics

Most studies were focused on neonatal adverse pregnancy outcomes, while only one study was focused on a maternal outcome. 58 Outcomes included PTB (<37 weeks gestation; n=19) 36–39 49–51 53 54 56–59 61 63 65–68 and gestational age (n=2) 38 67 ; LBW (<2500 g; n=7), 49 53 59 61 64 67 68 very low birth weight (VLBW) (<1500 g; n=3) 60 62 63 and birth weight for gestational age (BGA) (n=1) 55 ; SGA (n=4) 52 58 59 68 ; and HDP (n=1). 58 Only five studies did not report the type of pregnancy, 52 59 64 65 68 while all other studies included only singleton pregnancies. 36–39 49–51 53–58 60–63 66 67

Although more than three studies reported LBW, 49 53 59 61 64 67 68 sufficient information to perform meta-analyses was missing for five studies, even after contact with authors was sought. 49 53 64 67 The study by Rankin et al was not included as it focused solely on preterm LBW births. 61 From the studies on VLBW, 60 62 63 two studies contained overlapping participants 60 63 so no meta-analyses were performed on this outcome. From the 18 studies on PTB, 36–39 49–51 53 54 56–59 61 63 65–67 five 49 53 58 61 67 were likewise not included due to insufficient information. The remaining 13 studies reported ORs, 36 38 50 51 54 56 57 59 63 65 66 PRs 36 37 and HRs. 38 39

Preterm birth (PTB) and gestational age

The most commonly investigated adverse pregnancy outcomes were PTB and gestational age. 36–39 49–51 53 54 56–59 61 63 65–68 Thirteen studies 36 37 49–51 56–58 61 63 65 67 68 reported significant positive associations between racial discrimination and PTB and nine studies 37–39 50 53 54 59 61 66 reported non-significant positive associations. No studies reported significant negative associations (ie, an inverse relationship between experiencing racial discrimination and PTB). Of the studies reporting a significant positive association, 11 were of good or fair quality 36–39 50 53 54 56 58 65 68 and six of those reported a non-significant association. 37–39 50 53 54

The meta-analysis included 13 studies 36–39 50 51 54 56 57 59 63 65 66 comprising nine adjusted 50 51 54 56 57 59 63 65 66 and four unadjusted associations 36–39 between racial discrimination and PTB. Overall, data from 9299 participants and 1133 PTB cases were used. A forest plot is shown in figure 2 . The overall pooled OR for PTB was 1.40 (95% CI 1.17 to 1.68). Moderate heterogeneity levels were observed (I 2 = 60.78%) owing to the presence of several influential studies. 65 66 68 When these studies were excluded, the pooled ORs were attenuated to 1.48 (95% CI 1.20 to 1.82) 65 66 and OR 1.33 (95% CI 1.13 to 1.55). 68

Random-effects DerSimonian–Laird model meta-analyses of the association between racial discrimination and adverse pregnancy outcomes using adjusted ORs.

A series of sensitivity analyses were conducted. Online supplemental figure 4 shows the results of multiple analyses that exclude one study in each analysis, and the impact of their exclusion on the pooled OR. While excluding individual studies attenuated the overall pooled estimate, no exclusion materially altered the observed pooled association. Pooling crude estimates resulted in an OR of 1.42 (95% CI 1.18 to 1.71) (see online supplemental figure 5 ). In the subgroup analysis by reported race or ethnicity, an OR of 1.33 (95% CI 1.13 to 1.57) was found when only including results on African-American or black women (see online supplemental figure 6 ). When using the originally reported measures of association instead of the converted ORs, the pooled OR was attenuated to 1.46 (95% CI 1.20 to 1.77) (see online supplemental figure 7 ). Exclusion of studies that were graded as low quality in our quality appraisal resulted in a lower but still significant pooled OR of 1.31 (95% CI 1.08 to 1.59) (see online supplemental figure 8 ).

Asymmetric funnel plots and contour-enhanced funnel plots are shown in online supplemental figure 9 , suggesting potential publication bias, poor methodological design of the included studies or true heterogeneity. This asymmetry was only slightly attenuated when excluding low quality studies. The Egger’s test indicated no evidence of small-study effects on summary estimates of PTB (p<0.01). When assuming that there should be a symmetric funnel plot, the trim-and-fill analysis suggests that the number of missing studies was five, and that the adjusted effect estimate is OR 1.20 (95% CI 0.98 to 1.47).

Low birth weight (LBW), very low birth weight (VLBW) and birth weight for gestational age (BGA)

Other commonly researched outcomes were LBW, 49 53 59 61 64 67 VLBW 60 62 63 and BGA. 55 We were unable to perform meta-analyses on LBW. However, when combined, the studies suggest that women who experienced racial discrimination had a higher risk of a LBW or VLBW infant. 49 53 55 59–64 67 No studies reported a negative association. 49 53 55 59–64 67

Both significant positive associations of racial discrimination and LBW 53 59 61 64 67 and non-significant associations (trending towards positive) 49 53 59 61 67 were reported. The presence of a significantly higher risk was influenced by the adjusted variables, the severity of racial discrimination experienced and the type of discrimination experienced (lifetime, childhood or recent). Of the studies reporting a significant positive association, two were of good or fair quality 53 64 and one study reported a non-significant association. 53

High exposure to racial discrimination compared with low/medium exposure resulted in an OR of preterm LBW infants of 2.5 (95% CI 1.2 to 5.2) for past year experience and 1.5 (95% CI 0.9 to 2.8) for lifetime exposure. 61 When exploring BGA on a continuous scale, US racial and ethnic minority mothers who reported discrimination in ≥3 domains had lower BGA Z-scores compared with mothers not reporting discrimination in adjusted models (β −0.25, 95% CI −0.45 to –0.04). 55 In a study among Māori, Pacific and Asian women in New Zealand, the experience of several forms of racial discrimination was a strong predicter of lower birth weight for Māori women only (physical attack: β −1.06 (95% CI −1.83 to –0.28), unfair treatment at work: β −0.95 (95% CI −1.56 to –0.34), in the criminal justice system: β −0.55 (95% CI −1.08 to –0.02) and in the banking system: β −0.73 (95% CI −1.43 to –0.02)). 53

Similarly, studies exploring VLBW infants of African-American mothers found that perceived racial discrimination was associated with VLBW infants, 60 62 63 with two studies indicating significant relationships when exposed to ≥1 domains and ≥3 domains of racial discrimination in both unadjusted and adjusted models (participants were asked about racial discrimination across five domains in total: at work, getting a job, at school, getting medical care, getting service at a store or restaurant). 60 63 While insignificant, ORs of the third study likewise suggest a potential positive association, reporting an unadjusted OR of 1.9 (95% CI 0.5 to 6.6) and adjusted OR of 3.2 (95% CI 0.9 to 11.3). 62 This association persisted across maternal biomedical, sociodemographic and behavioural characteristics. 63 None of the studies on birth weight reported an increase in birth weight among those experiencing racial discrimination compared with those who did not. 49 53 59 61 64 67 Notably, all three studies on VLBW were considered to be of poor quality.

Small for gestational age (SGA)

Few studies explored SGA in relation to the experience of racial discrimination: two of good quality and one of poor quality. 52 58 59 Overall, data from 1588 unique participants including 290 SGA cases were used. The overall pooled OR for SGA was 1.23 (95%CI 0.76 to 1.99). Moderate heterogeneity levels were observed (I 2 =52.39%) ( figure 2 ). When using crude ORs instead of adjusted ORs, the pooled OR was attenuated to 1.68 (95% CI 0.79 to 3.54). Several sensitivity analyses and assessment of publication bias could not be performed due to the limited number of studies. 52 58 59

Aboriginal women experiencing discrimination in perinatal care were more likely to have an SGA infant than Aboriginal women not experiencing racial discrimination when adjusting for parity, stressful events and social health issues during pregnancy (OR 1.7, 95% CI 0.9 to 3.21) or when adjusting for parity and cigarette/cannabis use (OR 1.9, 95% CI 1.0 to 3.5). 59 When assessing overall racism experienced by African-American women, this was not associated with SGA (OR 0.95, 95% CI 0.82 to 1.10). 52 However, stratified by age, African-American women aged >25 years experiencing racism were more likely to deliver a SGA infant (OR 1.45, 95% CI 1.02 to 2.08) than women not experiencing racism. 52 In contrast, racism was not associated with SGA in adolescents aged ≤18 years (OR 0.92, 95% CI 0.66 to 1.28) or emerging adults aged 19–24 years (OR 0.86, 95% CI 0.69 to 1.06), 52 and was not the explaining factor in the disparity between non-Hispanic black women and non-Hispanic white women. 58

Hypertensive disease of pregnancy (HDP)

Only one (good quality) study reported on HDP. Among the large and geographically diverse cohort of nulliparous women, non-Hispanic black women were more likely to experience HDP than non-Hispanic white women. However, this disparity was not explained by differences in self-reported racism (adjusted OR 0.95, 95% CI 0.79 to 1.14). 58

This systematic review and meta-analysis assessed self-perceived racial discrimination and adverse pregnancy outcomes. While acknowledging the overall low quality evidence, these study results suggest that there may exist a positive relationship between increased racial discrimination and worse pregnancy outcomes. Across 24 included publications, both significant positive associations 36 37 49–53 56–61 63–65 67 68 and non-significant positive associations were reported. 37–39 49 50 52–54 58 59 61 62 66 67 No studies reported significant negative associations. The overall pooled OR was 1.40 (95% CI 1.17 to 1.68; 13 studies) for PTB, with an OR of 1.31 (95% CI 1.08 to 1.59) when excluding low quality studies, and 1.23 (95% CI 0.76 to 1.99; 3 studies) for SGA. Across sensitivity and subgroup analyses, the ORs slightly attenuated but remained indicative of a significant positive association.

When assessing both subjective (self-reported) and objective outcomes in cross-sectional and longitudinal studies, consistent associations with poor health across a range of outcomes have been reported. 69 72 Our findings align with existing evidence on perceived racial discrimination as an important risk factor for adverse pregnancy outcomes. A 2011 integrative review (10 studies) by Giurgescu et al found consistent positive relationships with LBW, PTB and VLBW. 73 Moreover, Alhusen et al found racial discrimination to be a significant risk factor for LBW, PTB and SGA in their integrative review of 15 studies. 25 Finally, a small narrative review by Mutambudzi et al argued that factors associated with racial discrimination accounted for some of the racial disparities in LBW and PTB. 74

Pervasive in people’s day-to-day lives, racism has far-reaching implications on the experiences of racialised individuals. As an upstream factor, it shapes other social determinants of health such as employment, poverty, education and housing. Relating more directly to health, racism can impact what services and resources are available, such as referral to specialist care, access to health insurance and access to public health services. 75 Several individual- and context-level factors may mediate or moderate the relationship between racial discrimination and pregnancy outcomes. For example, some studies indicated that the significant impact of racism on PTB was moderated by depressive symptomatology. 38 Likewise, others found that smoking mediated 13.5% of the total effect of self-reported everyday discrimination and LBW. 64 However, the majority of reviewed studies did not explore moderating or mediating factors. Broader literature suggests that factors such as racial or ethnic identification, positive racial evaluation, positive in-group racial attitudes, meritocratic world views, generic coping strategies and social support may reduce the health impacts of discrimination. 76 Mechanistic pathways through which racial discrimination adversely impacts pregnancy outcomes have yet to be elucidated. An American study of 107 921 women found that significantly higher proportions of racialised women had discontinuous insurance coverage between preconception and delivery compared with white women. The resulting racial-ethnic disparities in access to preconception, prenatal and postpartum care may lead to increased adverse pregnancy outcomes in racialised populations. 77 To be able to address racial discrimination and its health impacts more comprehensively, these factors and mechanistic pathways require further exploration.

Moreover, a long history of systemic discrimination, bias, direct racism and associated trauma resulting in psychosocial stress, high-effort coping strategies and distrust of the medical system culminate in poorer health outcomes and shorter life expectancies among racialised communities. 78–80 Illustratively, increased allostatic load (a marker of chronic physiologic stress experienced over a life course), inflammation and oxidative stress have been linked to inequities like racism and discrimination. Evidence suggests that chronic psychological stress may accelerate telomere shortening and cellular ageing, which are associated with the onset of disease, thereby connecting the experience of prolonged racism to tangible disease outcomes, including communicable and non-communicable diseases. 81 82 Emerging research on anticipating discrimination suggests that the chronic activation of cognitive imagery of a stressor itself can further result in prolonged stress and negative health impacts. 83 Recent studies report that chronic worry about racial discrimination may explain the persistent disparities in pregnancy outcomes through neuroendocrine, vascular, inflammatory and immune processes involved in both stress responses and parturition. 36

Early exposure to stress (preconception or in utero) and adverse effects on fetal and neonatal health may predispose individuals to chronic diseases in later life, while epigenetic mechanisms may have intergenerational health consequences. Illustratively, women with a history of PTB or SGA tend to have a higher allostatic load than women giving birth to term and normal weight infants. 84 Discriminatory events often begin early in childhood and continue through adolescence and adulthood, resulting in an accumulation of discriminatory stressors over the life course, both before and during pregnancy, which may impact pregnancy outcomes. However, thus far, limited attention has focused on capturing cumulative exposure to discrimination over the life course, with most studies focusing instead on recent occurrences. 69 Furthermore, it is important to note that, while the stress of daily life may result from racial discrimination, this effect can be magnified by coexisting correlates of socioeconomic status, which may explain differences in health outcomes among black women of differing socioeconomic status. 85 This may also shed light on the worsening health disparities between white women in the USA compared with women in other countries which have lower levels of income inequality and higher expenditures on social supports. 23

Strengths and limitations

This study has several limitations. First, perceived or self-reported racial discrimination is only a subset of total racial discrimination experienced by marginalised communities. 86 Subtle forms of racial discrimination may be perpetuated in normative forms beyond people’s conscious awareness, resulting from legitimising ideologies and perceived power that justify the status quo. 87 This includes established forms of systematic, institutional and organisational racism, or internalised racism, which may not always be perceived or self-reported as racial discrimination but nonetheless impacts health outcomes. 88 Importantly, other privileged or marginalised group identities, such as high or low socioeconomic status, respectively, may differentially shape the impacts of racial discrimination on health while also being differentially shaped by racial discrimination. For instance, while low socioeconomic status among racialised groups likely contributes to worse outcomes, the underlying structural/systemic racism is what leads to the racialised poverty. However, current research frequently fails to recognise these intersectionalities. 69 Furthermore, in the included studies, experiences of discrimination were only considered for an individual’s self-identified, but not socially perceived, race or ethnicity, which has been shown to correlate to differential health outcomes among members of the same race or ethnicity. In addition, measurements of perceived discrimination may be influenced by perception biases such as minimising bias (leading to under-reporting) or vigilance bias (leading to over-reporting). 86 89 Nonetheless, although perceived racism does not stand alone as an exposure, it is useful as a standardised and validated marker for the true, complex, multifaceted experience of racism across the life course in order to measure one level of the exposure to racism. Moreover, regardless of the ‘objectivity’ of such racial discrimination reporting, the subjective experience of racial discrimination may impact health across racial and ethnic groups. 89 90

Second, most included studies were based in the USA and few included marginalised racial or ethnic groups beyond African-Americans. 36–39 49 50 52 54–58 60–63 65–68 Likewise, most of the racial discrimination scales used were developed in the USA and focused mainly on the African-American experience. These instruments may not be fully able to capture all forms of discriminatory experiences across different marginalised racial and ethnic groups, 91 thereby limiting the generalisability of our results across different ethnogeographic and cultural settings. Third, the available evidence was limited and of relatively low quality, precluding a more robust synthesis and further detailed meta-analyses (including subgroup and sensitivity analysis). Heterogeneity was noted in both meta-analyses, which may have arisen from different levels of adjustment, different tools used to assess racial discrimination, and varied sample sizes, study qualities and time periods. Likewise, heterogeneity was found within studies when different models, discriminatory behaviours or subgroups were described, leading to both significant positive associations and non-significant associations within the same study. Importantly, the funnel plot asymmetry may be a potential indication of negative studies missing (publication bias) or could be an indication of true heterogeneity. 92 Under the assumption that there should be a symmetric funnel plot, the trim-and-fill analysis suggested that the pooled effect estimate reduced to OR 1.20 (95% CI 0.98 to 1.47). High quality studies that allow for detailed analysis across population groups are therefore needed to further confirm the results found in this systematic review. Fourth, while some scales used were validated within studies, the validity of other scales was rarely examined outside of the scale developers. 91 Some of the retrieved studies based the experience of racial discrimination on only one question in a broader survey without validation, raising concerns about the reliability of the data generated. 36 51 53 68 Lastly, to limit potential bias and confounders and ensure replicability, we only searched peer-reviewed academic journals. As a result, available evidence reported in the grey literature may have been missed, and the studies retrieved may have been impacted by publication bias.

Despite this, our review has several strengths, including a broad definition of adverse pregnancy outcomes allowing for a wide-ranging examination of the impacts of racial discrimination, a detailed comprehensive search strategy to gather available evidence and no restrictions on date or language of publication.

Interventions

The World Health Organization highlights the global need to address the impact of racial discrimination, racism and related intolerance on health. 93 There is a remarkable body of evidence identifying the negative impacts of racial discrimination on health, and several interventions have been suggested to reduce these negative health impacts. These include, for example, antiracism counter marketing, values affirmation and forgiveness interventions. 69 Some of the approaches that can be taken to reduce racial inequalities in health outlined by Williams et al include: (1) creating communities of opportunity that could minimise structural racism; (2) ensuring the emphasis on ‘health for all’ and public health approaches in healthcare systems, increasing the diversity of health professionals and ensuring that patients’ social needs are addressed as part of their management; and (3) building political will and support to counteract social and health inequities. 94 Studies have proposed group prenatal care as an alternative prenatal care delivery model to improve pregnancy outcomes, particularly among black women. 95 96 This model is thought to increase social support and lead to stronger physician–patient relationships. Moreover, it is critical to work towards decolonising and improving medical training by universally removing well-documented examples of racial bias which continue to perpetuate health inequities. This includes the lack of teaching on dermatology and differential disease presentations in non-white individuals, inaccuracies in pulse oximetry technology, unsubstantiated race-based adjustments to measuring renal function, and inadequate teaching around individual biases and the social drivers of health inequities. 97–99

Additionally, there is a need for more systematic population-based assessments of racial discrimination to collect data on maternal exposures and outcomes in the perinatal period. Such large-scale surveillance systems, implemented across diverse populations, can play a crucial role in closing the racial/ethnic gap in fetal, neonatal and maternal health outcomes.

Importantly, efforts to counter racial discrimination must focus on systemic policy changes rather than individual-level intervention and prevention efforts to create sustainable change. In 2019, NHS England committed to ensuring that, by 2024, 75% of women from black, Asian and minority ethnic communities will receive continuity of care from their midwife throughout the perinatal period. 100 Researchers have also called for reparations to historically oppressed communities to counter the discriminatory distribution of resources and increase access to health-producing resources. 101 Similarly, a 2018 study found that an unconditional prenatal income supplement for low-income women was associated with reduced disparities in adverse birth outcomes including LBW, PTB and breastfeeding initiation. 102 Dismantling the structures and policies that enable institutional and interpersonal racism, underlying racial and/or ethnic disparities in health and intersecting social inequalities is essential to improve overall health in societies. Partnerships with community-based reproductive justice and women’s health organisations who work in this area are indispensable in improving health for racialised women in a community-centred way.

Finally, it is important to acknowledge and recognise that modern-day settler colonialism, apartheid, xenophobia, islamophobia and antisemitism exist as forms of contemporary racism that are on the rise, both directly and indirectly contributing to negative health outcomes on a large scale. Historical and current efforts to highlight and boycott racist countries, policies and politicians for their roles in engineering racism serve as concrete interventions aiming to deconstruct racist structures on a global level. Examples of such efforts include the civil rights movement in the USA, the boycott of apartheid South Africa, and the efforts to mark and fight apartheid in Palestine, as well as efforts to frame anti-islamophobia in India and elsewhere. Globally, it is critical for public and global health scholars, educators and practitioners to research and fight these phenomena to contribute to better and sustainable health outcomes at the population level.

Conclusions

Our study highlights that racial discrimination has adverse impacts on pregnancy outcomes, with the greatest evidence found for PTB. While this work highlights the importance of research on racial discrimination and health, broader questions about limitations of this field of quantitative research remain. By reducing complex social interactions and experiences to quantitative findings alone, which may be limited by the tools used to take measurements, we risk missing nuances by focusing on statistical significance over the reported experiences of affected individuals. Qualitative studies further exploring these complex social interactions may be able to specifically identify occurrences of racial discrimination, macrolevel biases and implicit biases, address the larger sentiments of society around race and racism, and further push for changes in outdated medical and public health curricula to reflect the advances in our understanding of the relationships between race, racism and health. To further explore racial discrimination and their underlying mechanisms (including mediating and moderating factors), there is a need for higher quality quantitative and qualitative evidence using a life course approach from large ethnographically diverse cohorts that assess different forms, levels and contexts of racial discrimination on a plethora of fetal, neonatal and maternal health outcomes.

Acknowledgments

The authors would like to thank Professor Consuelo H. Wilkins (Senior Vice President and Senior Associate Dean for Health Equity and Inclusive Excellence, Vanderbilt University Medical Centre) for her critical feedback on this manuscript. The authors would also like to thank the peer reviewers for their constructive feedback that enabled the improvement of this manuscript.

Handling editor: Seye Abimbola

Contributors: JK, KRvD and CO-W conceived the presented idea and developed the research protocol, with support from IK. KRvD, JK, SK, GC, HM, EO, AC and CO-W participated in the title/abstract and full-text screening. KRvD, JK, AC, SK, GC and EO conducted the data extraction. KRvD, JK and GC performed the individual study quality assessment. CO-W and KRvD performed the GRADE assessment. KRvD conducted the statistical analyses. JK drafted the initial introduction draft. KRvD drafted the initial methods and results draft. KRvD and JK drafted the initial discussion draft. The senior authors provided critical feedback and expert advice on the project. All authors discussed the results and contributed intellectually to the final manuscript. KRvD, JK and CO-W are responsible for the overall content.

Funding: This study did not receive any specific grant from any funding agency in the public, commercial or not-for-profit sector. KRvD receives funding from the Gates Cambridge Scholarship (OPP1144) for her PhD research, which also covered the publication fees for this paper.

Competing interests: The authors declare that the research was conducted in the absence of any commercial or financial relationship that could be construed as a potential conflict of interest.

Patient and public involvement: Patients and/or the public were not involved in the design, conduct, reporting or dissemination plans of this research.

Provenance and peer review: Not commissioned; externally peer reviewed.

Supplemental material: This content has been supplied by the author(s). It has not been vetted by BMJ Publishing Group Limited (BMJ) and may not have been peer-reviewed. Any opinions or recommendations discussed are solely those of the author(s) and are not endorsed by BMJ. BMJ disclaims all liability and responsibility arising from any reliance placed on the content. Where the content includes any translated material, BMJ does not warrant the accuracy and reliability of the translations (including but not limited to local regulations, clinical guidelines, terminology, drug names and drug dosages), and is not responsible for any error and/or omissions arising from translation and adaptation or otherwise.

Data availability statement

Ethics statements, patient consent for publication.

Not applicable.

Ethics approval

This research did not require institutional review board approval as the data were publicly available and collected from existing online databases. This research did not involve any human subjects.

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Complex to navigate, hard to enforce: why pregnancy discrimination at work continues.

Despite legal protections against workplace pregnancy discrimination, some women continue to encounter it while pregnant or when seeking to return to work.

Supporting women while they’re pregnant, during parental leave and when they’re returning to the workforce is an ongoing issue for Australian employers.

New research from Monash Business School shows that women are not always supported, while employers can be unaware of their legal responsibilities or struggle to navigate complex workplace laws.

Associate Professor Dominique Allen and Ms Adriana Orifici from the Department of Business Law and Taxation worked with community legal centre, JobWatch in a just-released study.

Pregnancy discrimination at work

The researchers accessed anonymised and de-identified JobWatch case studies about women who had experienced pregnancy discrimination at work and contacted JobWatch for information.

As part of the study, they also interviewed four women.

“We wanted to learn more about what action, if any, women take when they experience discrimination while pregnant, during parental leave or when seeking to return to work following the birth of a child,” A/Prof Allen says.

They found that a common strategy was either for women to ‘live with’ the discriminatory treatment until it was time to give birth, find another job, or propose ‘work arounds’ to address the issue.

Pregnant women often use ‘work-around’ strategies to deal with discriminatory treatment.

And if they chose to do something about it, women preferred to do so through internal processes rather than formal legal mechanisms.

“Our study shows many pregnant women relied on informal discussions with managers and internal complaints processes when they experienced detrimental treatment,” Ms Orifici says.

“It was common for the women themselves to propose and informally implement solutions, when they identified issues. The internalisation of these issues to organisations can be one reason why these types of issues can be overlooked and under-examined.”

Main findings of the study

The study shows that women were no more likely to experience discrimination on the basis of their length of service, seniority, employment status (full-time, part-time or casual employment) or industry.

The most common issues that pregnant women described were termination of employment, changes to terms and conditions of employment that led the employee to experience a detriment, and changes to their employment status (for example, from ongoing full-time to casual employment).

Sometimes employers unilaterally imposed these changes. On other occasions, the women reported agreeing to changes under pressure from their employers.

Many women in the study experienced discrimination comprising of multiple acts or issues, and there were instances where the conduct worsened over time.

There were also cases of employers responding reactively to issues as they arose, rather than considering how to support pregnant workers throughout their journey.

The women also responded to experiences of pregnancy discrimination via legal and non-legal pathways.

Why discrimination remains hidden

The study identified other reasons why pregnancy discrimination can remain ‘under wraps’.

Some of the women in the study who left their jobs chose to ‘hide’ the real reason for their resignations so that their employers would still provide them with positive references.

Very few women pursued a formal legal claim, which is not unusual, according to A/Prof Allen.

“Discrimination claims are difficult to pursue because they’re costly and hard to prove,” she says.

“But when those challenges are combined with being pregnant or caring for a new baby, most women walk away.”

Women also need to navigate a complex framework of rights and protections including under Commonwealth, State and Territory equality laws as well as industrial laws.

Simply choosing a suitable legal pathway can be a daunting task.

Struggling to understand the law

The study found it is not only women who struggle to understand the law.

What the women told the researchers also suggests that some employers find the broad framework of rights and obligations that relate to pregnant workers challenging to navigate.

“Pregnancy discrimination in the workplace is unlawful but employers also have obligations under industrial laws and workplace health and safety laws to accommodate a woman’s pregnancy and keep her safe at work.” Ms Orifici says.

“It is also apparent that there is a lack of clear guidance material for employers on how to manage the range of obligations that arise under different laws,” Ms Orifici says.

The study’s findings show the need for more specific information to be developed for employers by either the Fair Work Ombudsman or the equality agencies in conjunction with workplace health and safety regulators.

“It is important that we have laws and systems in place to support women at each stage of their working life, particularly during pregnancy and return to work,” A/Prof Allen says.

“But equally as important is that employers know what they need to do to support their female workforce.”

Read the full report here .

Published on 8 Sep 2022

• pregnancy discrimination

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Case study 1: darlene, page controls, page content.

As part of a government program, Darlene, a grade 12 graduate, got a job with a local garden nursery. She was to help Mr. M., the owner, tend plants and shrubs, place orders and serve customers.

Mr. M's first review of Darlene's work showed that she was performing all her job duties exceedingly well. It was obvious that Darlene liked the work.

Over the next three months, Mr. M's behaviour toward Darlene began to change. As they worked, he would often put his hands on her shoulders and hips or lean over closer to her. At these times, she would quickly draw away from him. He then began to make offhand remarks about how he was sick of his wife and that he needed “satisfaction” from another woman.

Darlene did not encourage the comments or actions, nor did she say anything against them. However, she was becoming increasingly uncomfortable with the situation and tried to avoid the owner as much as possible. One day, Mr. M. asked her for a kiss. When she refused, he said “I know what's wrong with you. You're scared you're going to like it.”  A few days later, Mr. M. suggested that she come to his apartment to have sex with him. Darlene firmly refused, saying that she was seriously involved with her boyfriend. On several other occasions, the owner tried to get Darlene to come to his apartment.

In June, Mr. M. terminated Darlene's employment, saying he had no work for her, even though June is the busiest month of the year for the nursery.

Group discussion questions

• Did the nursery owner violate the  Human Rights Code ? If so, how?
• When Darlene first became uncomfortable with the nursery owner's  behaviour, why wouldn't she have said something?
• In this situation, would Darlene have had to say anything to the nursery  owner for him to know that he might be violating the  Code ?
• Is Darlene's termination a factor when assessing if her rights were violated?

Case study 2: Paramvir

In response to increased violence in its schools, a local school board adopted a policy prohibiting carrying weapons on school grounds. The following spring, the school administration learned that Paramvir, a Khalsa Sikh, was wearing a kirpan in school. The school wanted to implement its “no weapons” policy.

Of the estimated 250,000 Sikhs living in Canada at the time, more than 10% are Khalsa Sikhs—they have gone through the Amrit ceremony, symbolizing spiritual commitment. One of the duties of the Khalsa Sikh is to carry, at all times on his or her person, a kirpan, an article of faith symbolizing a spiritual commitment to law and morality, justice and order. A kirpan is a steel knife, encased and secured in a sheath, and generally worn out of sight under normal clothing.

After prolonged discussions with Paramvir's family and Sikh organizations, the school board amended its weapons policy to include kirpans. It forbade Sikh students to wear the kirpan to school—they could only wear a symbolic representation of the kirpan, provided it did not involve a metal blade that could be used as a weapon.

A Sikh teacher took the case to the Tribunal. At the hearing, it was argued that Sikh religious practices dictate that the kirpan must be made of iron or steel and worn at all times, otherwise the Khalsa would break their holy vows. It was shown that, while the kirpan has the appearance of a weapon, it has never been used in Canada as a weapon. Furthermore, it was argued that other school boards did not have a policy restricting kirpans. 

The school board argued that:

• Education was not a service covered by the Ontario  Human Rights Code  but was instead under the jurisdiction of the  Education Act
• The kirpan posed a risk as it looked like, and could be used as, a weapon
• Others could perceive the kirpan as an invitation to violence.
• Does the  Code  prevail, or have “primacy,” over the  Education Act ?
• Did the weapons policy discriminate against Khalsa Sikhs? How?
• Was the policy reasonable? Suggest some ways the school board  could accommodate Khalsa Sikhs without undue hardship – for example,  posing a safety risk?

Case study 3: Danté

After months of searching for a weekend job, Danté, who is Black, finally got an interview with the owner of a busy car wash and gas station. The owner seemed reluctant to hire him, but Danté managed to win him over. The owner gave him the job, saying that he would be working on a weekend shift with seven other young men, all students from the local area. The shift manager would train him on the car wash equipment.

On Danté's first day, the shift manager gave him only a few minutes of instruction on the equipment. Danté watched what the other men were doing, but when he asked questions, they were not very helpful.

Over the next few weekends, Danté concentrated on his work but because of certain events, he increasingly began to stay by himself. A few co-workers invited him to join their little group for lunch or breaks, but others consistently cracked ethnic and racial jokes, often within hearing of the shift manager. One day Danté overheard the manager say that Black people were responsible for increased violence in the community. This statement encouraged some co-workers, who had previously eaten lunch with Danté, to tell a couple of jokes about Black people. When they glanced at him as they told their jokes, he got up and walked away.

One busy Saturday afternoon, a whole section of the car wash equipment broke down because someone had allowed the system to become overheated. Danté had worked on that section until his break, when a co-worker took over. The system had broken down at some point after that.

The shift manager was furious and accused Danté of negligence. Danté replied that he believed the system was fine when he left for his break. Although Danté insisted that the equipment failure was not his fault, the shift manager fired him. Dante believed he was discriminated against because he is Black, while his co-workers and managers are White.

• Did the shift manager have good reason for firing Danté? Why?
• What factors would a human rights tribunal take into consideration?

Case study 4: Tammy

By age 11, Tammy had bowled for five years in the local recreation league. She and several others qualified to enter a province-wide competition sponsored by the Youth Bowling Council.

Tammy has cerebral palsy and uses a wheelchair, but she has some movement and coordination. So she could bowl, her father built a wooden ramp, the top of which rests in Tammy's lap. She lines up the ramp towards the bowling pins and lets the ball roll down the ramp.

Just before the competition, the Council ruled that Tammy was ineligible to take part. While the Council's rules allowed persons with disabilities to use special equipment to assist them in recreational bowling (provided the equipment did not add force or speed to the ball), they prohibited the use of such equipment in competitions.

The Tribunal and later the Supreme Court of Ontario heard Tammy’s application. The Youth Bowling Council argued that it had not violated her rights under the  Code , because Tammy wasn’t capable of the essential requirement of bowling—manually releasing the ball. The Council also contended that the use of special devices would make competition between the bowlers unfair, because the skills assessed would not be common to all competitors.

Tammy's lawyers argued that Tammy was bowling—she was using the ball to knock down pins. Also, the Youth Bowling Council had a duty to accommodate her under the  Code  by allowing her to use the ramp. Speed and accuracy tests showed that Tammy did not gain any advantage over other bowlers. Her ball speed was too low for maximum results and her accuracy no better than average.

• Could Tammy perform the essential requirement of bowling? Should this  argument have been a factor in determining whether a violation occurred?
• Should the Council have to accommodate Tammy (for example, should they  allow her to bowl in competitions with the ramp)?
• Would the Council experience undue hardship if it accommodated her in competitions? Would it change the sport too much? Give your reasons.

Case study 5: Kyle

Kyle is a young man who went to The Barking Frog, a bar in London, Ontario. He went on a “Ladies” Night,” when women are charged a lower cover charge than men. Bars across Ontario (and indeed across Canada and parts of the United States) routinely hold what are commonly called ladies’ nights, where women are charged a lower cover charge or no cover charge to enter the bar or are given discounts on their drinks. This practice has been common in Ontario and elsewhere for decades.

Kyle went to The Barking Frog, where the doorman told him the cover charge was $20 for the men but only $10 for the women in the group. Kyle was upset and was unwilling to pay the $20, so he did not enter the bar.

Kyle launched a human rights complaint claiming the different cover charges amounted to discrimination based on the ground of sex.

• Did Kyle face discrimination? If so, what type?
• What factors would be taken into account to determine if this differential  treatment violated the  Code ?
• How is substantive equality different from formal equality?

Case study 6: Rita

Rita and her family moved to the city from a remote community in the middle of the school year. Within a week, Rita was registered at the local high school and began attending classes. She travelled to and from school by school bus.

After two weeks at the new school, Rita was just beginning to settle into her classes. However, she was somewhat nervous about her history course. After her first class, the teacher made it clear that Rita had a lot of “catching up” to do, if she were to pass the course.

The following week, some students gave a presentation on Columbus' voyage in 1492 to the “New World.” There was lively discussion, and readings and prints were circulated depicting Columbus' arrival in various territories. There were several references made to “Indians and savages” that the colonists “had to defeat” to settle the New World.

As a member of the Cree Band, Rita was dismayed by the way the teacher portrayed Aboriginal persons in the presentation. She approached her teacher before class the next day to discuss the issue. As the class began, the teacher announced that Rita had concerns with the Columbus presentation. She then turned to Rita and asked her to give her version of the “Columbus discovery” from an Aboriginal point of view.

Caught off guard, Rita haltingly made several points, and then sat down quickly when several of the students began to snicker. Later that day on the bus ride home, some of the other students jeered at her, saying if she didn't like history the way it was taught, then she should drop out. She turned away and ignored them. The next day, the jeering continued in the hallway. When she went to her locker at lunch, someone had scrawled the words “gone hunting” on her locker door. Again, she ignored the curious students around her.

Rita told her parents about the incidents. They called the principal, who said she would give “hell” to the offenders. She also suggested that Rita should make more of an effort to fit in and get along with others.

• How should the teacher have handled Rita's concern over the  Columbus presentation?
• Should the principal deal with the situation in a different way?

Case study 7: Cindy

Cindy, 19, applied for a job at a nursing home as a nursing aide. She had previously worked part-time as a kindergarten teacher's aide and had also cared for children with mental and physical disabilities during her high school years. In her initial interview, the assistant administrator told Cindy she was an ideal candidate and that she probably would be hired.

She was given a pre-employment medical examination for her family doctor to complete. He confirmed that she could meet the requirement of being able to lift patients.

At a second meeting, the interviewer reviewed the completed medical form and noticed Cindy's hand. During the initial interview, the assistant administrator had not observed her left hand, on which the index, middle and ring fingers were much shorter than those on most hands. Following this, the interviewer and another nursing director spent much time discussing Cindy's disability and the job requirements. Even though they both really wanted to hire Cindy, they didn’t think she would be able to cope with the gripping or clasping that is needed to lift patients.

Although Cindy said she could perform the duties and had done similar tasks in her previous job with children with disabilities, she was not hired.

• Did the interviewer have reasonable grounds to believe that Cindy  could not do the job?
• On what basis did the interviewers assess that Cindy could not meet  a  bona fide  job requirement?
• What do you think the interviewer and the nursing director should have  decided? What are your reasons?

Case study 8: Maria

When Maria began working for the packaging company in 2003, her first name was Tony. She was hired as a general labourer on August 24, 2003. In 2008, she was accepted in the gender identity clinic and began transition from living as a man to living as a woman. She started the process of sex reassignment and developed female breasts as a result of hormone treatments. Maria says that she was harassed, subjected to a poisoned work environment and dismissed – all violations of the  Human Rights Code .

Maria said that Gerry, a lead hand and machine operator, played a central role in the harassment and the incident that led to her dismissal. The packing company said the allegations never happened. The company argued that it treated the applicant appropriately, considering her a man and treating her like other men until it received medical or legal documentation that she was a woman. They say they fired her because of her attitude and being involved in workplace conflicts that were her fault, as well as insubordination.

• In what ways do you think Maria might have experienced discrimination  in her employment?
• What reasons do you think Maria's supervisor would give for firing her?  What do you think of these reasons?
• What remedy do you think Maria should receive because she was  discriminated against?

Case study 9: Tawney

Tawney worked as a forest firefighter for the Province of British Columbia and was a member of the Initial Attack Forest Firefighting crew for a small area in the forests of BC. The crew’s job was to attack and suppress forest fires while they were small and could be easily contained. Her supervisors found her work satisfactory and had no reason to question her continuing ability to do the work safely and effectively.

After she had been successfully doing this job for three years, the government adopted a new series of fitness tests for forest firefighters. The tests were developed in response to a Coroner’s Inquest Report that recommended that only physically fit employees be assigned as front-line forest firefighters for safety reasons. The tests required that forest firefighters weigh less than 200 lbs. (with their equipment) and complete a run, an upright rowing exercise, and a pump carrying/hose dragging exercise within stipulated times.

The running test was designed to test the forest firefighters’ aerobic fitness. Subjects were required to run 2.5 kilometres in 11 minutes. After four attempts, Tawney failed to meet the aerobic standard, running the distance in 11 minutes and 49.4 seconds instead of the required 11 minutes. As a result, she was laid off.

Stating that the test unfairly discriminated against women, Tawney’s union brought a grievance on her behalf.

• ​ What do you think about having different standards for men and women?
• Do you think the test was a fair way of measuring a firefighter’s ability  to do the job?
• If Tawney was passed, even though her running time was below what  was required, is she being given preferential treatment over men?

Case study 10: Réjeanne

Based on  Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Montreal (City); Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Boisbriand (City) , [1999] 1 SCR 381 — 1999-02-24 Supreme Court of Canada — Canada (Federal)  http://canlii.ca/t/1fqmp

Réjeanne lived in Montreal. Her career goal was to become a horticulturalist. She had successfully passed a college course and completed an apprenticeship as a gardener with the city’s Botanical Gardens. When a suitable opening came up to work as a horticulturalist with the city, she immediately sent in her application.

Réjeanne was fully qualified for the position and was invited for an interview. She successfully passed the interview. However, she also had to undergo a physical check-up to confirm her suitability for the job. This check-up indicated she had a slight curvature of the spine called  scoliosis . Réjeanne was surprised to learn this, as she had never experienced any symptoms from this relatively common condition. In fact, she had never experienced any pain, nor had she suffered any limitation on her because of her condition. A later evaluation showed that Réjeanne was able to perform all the duties of a gardener-horticulturalist in complete safety to herself and others, and that there was no need to limit her duties.

When it became aware of Réjeanne’s condition, the city decided to hire another candidate who it thought would be less of a risk for back problems and therefore unlikely to incur increased health care costs later on. The city rationalized its decision saying that it had the right and even the responsibility to employ individuals who would pose the least potential cost to taxpayers.

Believing the city had rejected her application because of a handicap, Réjeanne made a complaint to the Human Rights Tribunal. Réjeanne alleged that the city acted in a discriminatory way that deprived her of unemployment insurance benefits, caused her a high level of stress and deeply humiliated her. The city responded that because Réjeanne had no functional limitations, it could not be said that she had a disability under Quebec’s  Charter of Human Rights and Freedoms .

• Why do you think that the city should or should not have hired Réjeanne?
• If it is possible that Réjeanne will develop back problems, do you think that  the city did the right thing by not hiring her?
• Do you think society’s view towards persons with disabilities has a positive  or negative impact on the barriers they face?

Case study 11: Alia and Ahmed

There are many people in Ontario who are deaf, deafened or hard of hearing. Some people may use sign language as their first language or preferred means of communication, and their inability in English will seriously impede their ability to communicate unless aided by interpretation. For these Ontarians, effective communication and getting fair access to services and employment is very hard.

Alia and Ahmed are parents who were both born deaf. They were expecting twins and would usually provide their own sign language interpreters for their medical visits. Unless an interpreter was present, communicating information was often frustrating for them. At the same time, any miscommunication about medical information could be dangerous.

Alia went into labour eight months into her pregnancy. She and her husband found themselves at the hospital without the aid of an interpreter. Neither the attending doctor nor the nurses could effectively communicate with the parents, who found this isolation difficult and frightening. After the babies were born, they were immediately taken away from the delivery room and put under observation in another area of the hospital. One nurse wrote on a piece of paper that the children were “fine.” Otherwise, no one gave any details about the twins’ condition to either Alia or Ahmed.

In their human rights complaint, Alia and Ahmed alleged that the hospital was providing unequal services because it did not accommodate their needs as deaf persons. The hospital replied that it was too hard to bring in interpreters on such short notice, and that it was too expensive to keep interpreters on call 24 hours a day.

• How would you feel if you were in the same situation as Alia or Ahmed?
• Whose responsibility is it to provide sign language interpreters in public  service sectors?
• How would this claim be covered under the  Code ?
• Do you think it’s unreasonable for deaf people to expect interpreters  to be available in emergency situations? What about in other non- emergency situations?

Case study 12: Marc

Marc is a gay 17-year-old student attending a publicly-funded Catholic high school. He wishes to go to the prom with a same-sex date. The prom is being held at a rental hall off school property.

The school principal and the Catholic School Board have said no on the grounds that this would be endorsing conduct contrary to the church’s teachings. Marc believes that this is a violation of his human rights. He is considering seeking a court injunction because the prom is only weeks away.

• What ground and social area does Marc’s application fall under?
• What competing rights are involved here? 

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Student Spotlight: Tiffany Johnston

Towards the end of her 2L year, Tiffany Johnston received some unexpected but welcome news—she was pregnant. 

“I’ve been told since I was 16 that it would be nearly impossible for me to have a child naturally,” Johnston said. “We originally thought it might have been cancer, but she turned out to be a baby!”

Johnston had big plans for her final year of law school, including a semester abroad at Utrecht in the Netherlands. However, after a series of events led her to undergo an amniocentesis procedure (a process where amniotic fluid is extracted from around the fetus), Johnston was forced to change her plans

“Although it was an unnecessary procedure, it had a silver lining where we found out she had Medium-chain acyl-coenzyme A dehydrogenase deficiency, or MCADD for short.” Johnston explained. “MCADD is a very, very rare condition where she is not able to process fats, meaning she has to eat every 2-3 hours or risk seizures, liver problems or brain damage, among other concerns.” 

After the diagnosis, Johnston was labeled a high-risk pregnancy and ultimately placed on bedrest. Despite the obstacles, she was determined to continue her law studies as much as possible. 

“The professors and staff were amazing and accommodating,” Johnston said, calling out a group of students who came to her house to study with her. “Their company during that time meant more to me than I can ever let them know.” 

“Evangeline Victoria Koustis (Evie) came unexpectedly on Oct. 19, at just 3 pounds and 5 ounces,” Johnston said. “I was able to hold her for maybe thirty seconds before they took her to the NICU, she had a trans-esophageal fistula and needed to be rushed into surgery.” 

In those early days, doctors also discovered that Evie had three holes in her heart, complications with her kidney and that her MCADD was proving to be more challenging than expected. With support from the law school community, Johnston managed to keep up with her studies.

“During those first few weeks, students sent food and encouragement and professors worked with me on projects,” Johnston explained. “Some students visited us in the hospital and brought her sweet gifts, checking to make sure I was maintaining my sanity.” 

Just after Thanksgiving, as Evie was beginning to breathe on her own, she tested positive for both COVID and a rhinovirus. 

“These were the longest and hardest 21 days of our lives,” Johnston said. “She went back on breathing equipment, crying and struggling for every breath of air. We were moved to an isolated room and could just sit there with her, holding her when we were allowed. So many people were praying and sending good thoughts, and we greatly appreciated it.”

On Feb. 5, over 100 days after her birth, Evie was finally released from the NICU and able to come home. 

“I am so appreciative of everyone in the law school for the prayers, thoughts, help and accommodations we had while Evie was in the hospital,” Johnston said. “We are so grateful for everyone who has asked about her and helped our family out during this difficult time!”

As she cares for her daughter at home, Johnston continues to work on her coursework remotely. When asked if she has any advice for current and prospective law students, Johnston reflected upon her own experience. 

“Throughout law school, I got out of a terrible 11 year relationship. I lost my best friend and the person who raised me, my grandmother, my second year. I fell in love and got married. I had a terrible pregnancy with a slew of complications. I took a final in my daughter’s hospital room, not knowing if she was going to survive. I say all of this to say: all of this happened while I kept up with my readings and assignments. If I can do it, you absolutely can make it through!”

“Never stop trying and keep a smile on your face—you can’t choose your situation, but you can choose how you respond to it and to be happy.”