Pregnancy Discrimination Has Been Illegal for 40 Years, But It's Still Rampant

Pregnant woman at work


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This Wednesday marks 40 years since the passage of the Pregnancy Discrimination Act, landmark legislation that made clear that pregnancy discrimination is illegal sex discrimination. Judy Lichtman, senior advisor and past president of the National Partnership for Women & Families (formerly the Women’s Legal Defense Fund) was instrumental in helping to pass the law.
Lichtman spoke to Fairygodboss about the fight for the Pregnancy Discrimination Act, why women still experience pregnancy discrimination today, and where we can go from here. 
Why was it necessary to pass the Pregnancy Discrimination Act? Doesn’t other legislation – like the Civil Rights Act of 1964 – provide protections against this type of discrimination?
While we thought pregnancy discrimination was a violation of the Civil Rights Act, what the U.S. Supreme Court said in General Electric Company v. Gilbert – a really terrible decision in 1976 – was that pregnancy discrimination is not sex discrimination. So we went right back to Congress to pass the Pregnancy Discrimination Act to make clear that pregnancy discrimination is a violation of women’s employment rights and therefore a violation of the Civil Rights Act. The Pregnancy Discrimination Act was an amendment to the Civil Rights Act. It was a two-year fight that we didn’t expect, but we pursued it and won.
Can you tell us what process you underwent to advocate for this legislation?
The first step was putting together a coalition. We built a broad coalition led by women’s groups, labor unions, disability rights groups, religiously-affiliated and faith groups. The entire breadth of the progressive community joined with us in our advocacy. We then divided ourselves up into a public affairs committee, a lobbying committee, the drafting committee that drafted the legislation, and a grassroots and organizing committee with leadership from within that broad group of organizations that were committed to overturning Gilbert.
Who were some of the lead advocates who helped to pass the Pregnancy Discrimination Act?
The chair of the coalition when we started out in 1976 was none other than future Justice Ruth Bader Ginsburg. She called the first convening meeting a day or two after the Gilbert decision and was part of the leadership until President Jimmy Carter appointed her to the federal bench in 1980. There are many women leaders today who fought to pass this important legislation four decades ago. Marcia Greenberger, who had been co-president of the National Women’s Law Center; Susan Ross, then a director with the ACLU’s Women’s Rights Project; Wendy Williams, a faculty member at Georgetown Law School; Judge Marsha Berzon, who is now on the Ninth Circuit, and believe me I could go on.
What was the most difficult part of passing the Pregnancy Discrimination Act, and how did you and other advocates overcome this challenge?
I think the most difficult part was convincing Congress that they had to do anything at all. They thought pregnancy discrimination wasn’t really a problem, and if it was a problem at all, it was one that they thought they had already resolved. There was also an attempt by anti-choice forces to add an anti-abortion amendment. It was difficult and held us up for a little while to limit that attempt so that it didn’t undermine and destroy the Pregnancy Discrimination Act as we know it.
What was the most rewarding part of fighting to pass the Pregnancy Discrimination Act?
Among the most rewarding is to think about how many women and families in the real world were going to have civil rights protections they didn’t have before. Just knowing that millions and millions of working women and their families were going to be better off as a result of this legislation because they could no longer be fired or discriminated against simply due to pregnancy – and that has been borne out in the decades since. This legislation has made a real difference in pregnant and parenting women’s economic stability and equality.
How frequent is pregnancy discrimination now? What allows pregnancy discrimination to continue?
It’s really distressing that workplace pregnancy discrimination continues to this day. Tens of thousands of women have reported being discriminated against in the last several years, and the numbers aren’t improving. It affects women of every demographic that you can think of, in every state you can think of, in every industry you can think of. And while the Pregnancy Discrimination Act on the one hand has made a great difference, it hasn’t really turned out to protect women to the extent that we may need protections. For instance, many employers continue to deny women reasonable accommodations during pregnancy, such as carrying a water bottle, having more frequent bathroom breaks, or using a stool. We are fighting for the Pregnant Workers Fairness Act to ensure there is no ambiguity that workers who are pregnant are entitled to these kinds of accommodations. 
What do you believe makes it so difficult to pass additional legislation to prevent pregnancy discrimination?
It’s a combination of things. Sadly, there are a lot of men in elected office who think that discrimination against pregnant women is not a problem since they haven’t experienced it. It doesn’t seem like a priority for them. In fact, during the passage of the Affordable Care Act, Sen. Jon Kyl said that, because he can’t become pregnant, insurance policies shouldn’t need to cover maternity care. It was his female colleague, Sen. Debbie Stabenow of Michigan, who had to remind him that his mother would have needed maternity care to give birth to him! This has too long been viewed as a niche issue, despite the fact that literally everyone has to be born and that the majority of adults will have children. What does that conversation on the Senate floor say about where we are in America about protecting our women from the most egregious forms of gender and sex discrimination? It just screams misogyny — and ignorance.
How can women actively advocate for greater pregnancy protections?
Women can pay attention to who they vote for and make sure that they vote for people who care about the issues they care about, including passing legislation at the state or federal level, like the Pregnant Workers Fairness Act, that will further protect pregnant women from discrimination. They can take action with advocacy groups that are fighting for stronger legislation. They can make sure that the community groups and the groups they do belong to take a strong position against pregnancy discrimination. Finally, they can take steps to ensure that their own workplaces have inclusive policies that protect against discrimination, provide pregnancy accommodations, and offer paid family and medical leave.  
What can a woman do if she believes she is being discriminated against for being pregnant?
A woman’s response to experiencing pregnancy discrimination depends largely on the circumstances. No matter what, individuals should write down details of the experience – including the timing, what was said or done, and whether there were any witnesses – and be sure to save these notes somewhere secure. Depending on if individuals feel safe doing so, they can speak to their supervisors or a human resources professional about what happened and seek information on how to formally bring an internal claim. Women can also file a claim with the Equal Employment Opportunity Commission (and don’t need a lawyer to do so). It is also important for women who experience discrimination to find someone trusted in their own lives to share the experience with and seek support, as these experiences can be stressful or traumatic.