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The American Bar Association recently reported, Pregnancy Discrimination cases or more appropriately, "Family Responsibilities Discrimination" cases are on the rise. The EEOC also reported that
pregnancy discrimination claims have increased by 31% between 1992 and 2005. In fiscal year 2005, the EEOC received 4,449 pregnancy discrimination charges and resolved 4,321 of those cases recovering $11.6
million in monetary benefits (exclusive of litigation). In June 2006 the EEOC also announced the dollar value of the infamous 2002 class action settlement against Verizon Communication's predecessors, Nynex
Corp. and Bell Atlantic Corp. The cost – nearly $49 million to cover the benefits women lost while on pregnancy and maternity leave. Clearly, a very costly area for the employer. (All litigation
is expensive.)
Triggering these Family Responsibilities lawsuits are allegations of discriminatory practices carried out against individuals during pregnancy, maternity/paternity leave and requests for flexible
schedules. In addition, the legal theories driving such cases appear endless, primarily due to the view that any type of stereotyping about motherhood is looked at as a form of discrimination (Back V. Hastings on Hudson Free School District, 365 F3d 107 CA 2nd,
2004). The legal theories range from disparate impact and treatment to hostile work environment and violations of the Family and Medical Leave Act.
In relation to the above, it should be noted that the Pregnancy Discrimination Act of 1978 does not require or allow preferential treatment for pregnant employees. The Act, which amended Title VII
of the Civil Rights Act of 1964, was designed to prohibit discrimination on the basis of pregnancy, childbirth or related medical conditions. Simply, the Act requires employers to treat pregnant women the same
as other employees with similar abilities or physical limitations.
On a positive note for employers, the Sixth Circuit Court of Appeals in May, 2006 "tossed out a disparate treatment lawsuit by a pregnant worker who claimed she was discriminated against because she
wasn't given a light duty assignment." Reeves v. Swift Transportation Co., 446 F3d 637 (CA 6th, 2006). The Court ruled that the company's policy of granting light duty assignments
only to workers who were injured on the job is a legitimate, non-pregnancy-based reason to terminate an employee who could not lift more than 20 pounds. The court also noted that entitling women to light-duty
work would "provide greater protection and benefits to pregnant women than to other employees who suffered from non-work related injury or illness, such as a heart-attack or cancer."
Family Responsibilities litigation is a new concept and it is on the rise. This increase may be due in part to changes in the 1991 Civil Rights Act which allowed for emotional distress and punitive
damages in cases involving intentional employment discrimination. It may also be due to the generations shift in the workforce and the viewpoints of these groups about employment in general. The more
seasoned generation worked in what has been described as the traditional male dominated workplace and work was an unquestioned requirement. The younger women in today's workforce see their jobs as an
entitlement. They also have a different view of motherhood and what constitutes discrimination. Therefore, cases of this nature, especially those that go to trial, become family value cases not
discrimination cases and as such are more difficult to defend. The result, the aggrieved mothers and fathers are winning. Caveat employer!
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