Why Is It Still So Hard For Women To Prove Workplace Discrimination, Even When It's Painfully Obvious?

The following is an excerpt from  Under The Bus; How Working Women Are Being Run Over  by Caroline Fredrickson (The New Press, 2015):


Most Americans know we have a system of laws forbidding discrimination in the workplace. While this is true and the laws have done much good, few are aware of how weak the laws are. But if they knew that overt discrimination still accounts for 40  percent of the wage gap between men and women, people might realize that the law is not achieving its goals. Despite the passage of Title VII of the Civil Rights Act of 1964, which bans discrimination in hiring, pay, promotion, and the conditions of employment on the basis of sex, race, color, national origin, and religion, as well as the Equal Pay Act of 1963, which protects equal pay for women, why do we have such a persistent problem with discrimination?

The main substantive difference between the Equal Pay Act, passed in 1963, and Title VII of the Civil Rights Act of 1964 is that the Equal Pay Act applies only to wage discrimination based on sex, while Title VII prohibits all discrimination in employment, including wages, hiring, firing, and terms and conditions of employment, on the basis of race, color, religion, or national origin, in addition to sex. There are also procedural distinctions in bringing a case, and, significantly, the Equal Pay Act does not provide for compensatory or punitive damages, but only back pay and other direct losses. But even with both statutes, the truth of the matter is that the law is simply deficient. Substantively, lawmakers and the courts have severely circumscribed what constitutes discrimination, and so the law does not address some of the most persistent problems that face women in the workplace. Congress has not adequately funded the agency meant to enforce the law, the Equal Employment Opportunity Commission (EEOC), and the courts have placed insurmountable hurdles in front of victims. Moreover, and perhaps most surprising to a great number of Americans, many women are not covered by the law at all.

Even for women who are covered by the antidiscrimination statutes, the law’s toothlessness gives them an inadequate shield against mistreatment and lower wages based on their sex. In particular, Title VII and the Equal Pay Act are basically blind to some obvious differences between men and women: women bear children and men do not, and women are more often the primary or sole caregiver for children and elderly relatives. The theory behind the law is that so long as a woman is just like a man, she should be treated the same. But where she is different, there is no basis for a claim of discrimination. Those who fought for purely equal treatment had a strong case—prior to the law’s adoption, women had been subject to all sorts of work limitations, including prohibitions on working at night or in certain types of jobs, that grew out of deep-seated stereotypes that women were too weak or delicate to do certain jobs. These advocates fought against rules that kept women out of many higher-paid jobs, rules that rested on a belief in women’s innate difference. But a too-rigid view of equality means that where women are truly different—they do, after all, bear children—the law sometimes fails to protect them from discrimination.

In an op-ed for the New York Times, an employment lawyer paints a picture of how little the law does for pregnant women:

Few people realize that getting pregnant can mean losing your job. Imagine a woman who, seven months into her pregnancy, is fired from her position as a cashier because she needed a few extra bathroom breaks. Or imagine another pregnant employee who was fired from her retail job after giving her supervisors a doctor’s note requesting she be allowed to refrain from heavy lifting and climbing ladders during the month and a half before her maternity leave: that’s what happened to Patricia Leahy. In 2008 a federal judge in Brooklyn ruled that her firing was fair because her employers were not obligated to accommodate her needs.

One would think that the Pregnancy Discrimination Act would have changed this outcome. Adopted by Congress after several courts issued decisions finding that when an employer fires or demotes a woman because she is pregnant that is somehow not sex discrimination—it’s true; I’m not making it up—the Pregnancy Discrimination Act amended Title VII to clarify that, indeed, discriminating against pregnant women counts as discrimination. But subsequent courts have decided that all Congress meant to do was simply to reiterate the basic point of the civil rights law—treat women just like men, even when they are pregnant. To paraphrase Chief Justice John Roberts, “If we want to end gender discrimination, we have to stop discriminating on the basis of gender”—it is exactly this kind of thinking that shows the danger of strictly interpreting “equal treatment.” The Pregnancy Discrimination Act forbids bosses from refusing to hire, terminating, or otherwise disadvantaging a woman solely because she is pregnant. If an employer offers a disability leave or decent sick leave policy, it must allow pregnant women or new mothers access to these benefits, but there is no requirement that an employer have such benefits to begin with. Only if an employer “denies a pregnant employee a benefit generally available to temporarily disabled workers holding similar job positions” would it be engaging in discrimination on the basis of pregnancy.

What makes it so hard to win these cases is that the pregnant woman must be able to show both that her employer’s explanation for her termination is false and that her pregnancy (and not the accommodation) is the sole basis for the discrimination. The employer could concede that it discriminated but still win by arguing that it had an additional reason for firing her—that accommodating her health restrictions was too costly, that the company doesn’t allow employees to change duties for any reason, whether it be injury, illness, or pregnancy, or simply that the company was changing its business plan and needed an employee with different skills. The justifications are often ridiculous—but just because a reason is silly doesn’t mean a court will find that the company engaged in discrimination.

For example, a pregnant worker in Salina, Kansas, got canned by Walmart simply for carrying a water bottle contrary to store policy because she needed to stay hydrated to avoid bladder infections.18 Peggy Young, a delivery driver for the United Parcel Service (UPS), asked for light duty when she got pregnant, something UPS did routinely for workers who had a job-related disability or injury. Instead, UPS put her on unpaid leave for an extended period of time and she lost her medical coverage as a result—just when she needed it most. UPS hid behind its collective bargaining agreement, saying it could not treat pregnant workers differently from other workers—our rules are “pregnancy-neutral,” said the company. In essence, UPS argued that when employees need light duty, what matters is the cause of their disability, not the fact that they need an accommodation for their health. And the courts seem to agree—the federal trial and appellate courts ruled in favor of the company.

In a welcome advance, in 2014, the EEOC issued updated guidance on what constitutes discrimination against pregnant women, saying that pregnancy should be treated like a disability under the Americans with Disabilities Act, requiring employers to make accommodations. As one commentator noted, “if we can make work accommodations for men who have hernias or heart attacks, why not for pregnant women?” But whether the courts will follow the EEOC remains to be seen. And with this Supreme Court, it is something to worry about.

There has been some progress, at least in a few states and localities. Floralba Fernandez Espinal’s experience in New York shows the difference a good law can make. She had suffered a miscarriage in a previous pregnancy and was experiencing complications from her pregnancy, so she asked her employer, a thrift store, to allow her to avoid lifting heavy piles of clothing, which she otherwise did regularly. She requested reassignment to light duties with a doctor’s note, as required by her supervisor—instead, she was told that she would be put on unpaid leave. All of a sudden, Floralba was pushed out and lost her income, just when she had a new baby to take care of. “How do they expect me to pay rent, to buy food?” she asked. In most places, this story would have ended there, since her employer did not have a policy to put injured workers on light duty. New York City, however, had recently passed the Pregnant Workers Fairness Act, requiring employers to provide accommodation for pregnant workers, unless it proves an “undue hardship for the employer.” Plus, Floralba had a union that made sure to educate her about her rights and that fought for her. Before her union consulted with the lawyers and found out about the new legislation, she faced desperate straits.

New York City did the right thing and included all workers by extending its coverage to domestic workers as well and not cutting out small employers. Thirteen states have followed New York’s lead and require employers to provide some accommodations for pregnant workers. At the federal level, in 2013, Senator Bob Casey (D-PA) and Representative Jerrold Nadler (D-NY) introduced the Pregnant Workers Fairness Act, which would require pregnancy to be accommodated under the Americans with Disabilities Act, the position taken in its guidance by the EEOC. But for now, most women faced with a situation like Floralba’s have no recourse.

Women get paid less because they are women. Act like a man in all ways and you will be fine. But once you show that you are actually a woman, there’s no protection. For all of us, pregnant or not, there’s an unstated wage penalty, with employers factoring in the potential cost of women employees having children and needing or asking for time off. And there’s the blatant wage gap that emerges when women actually do get pregnant. Women with children suffer wage losses even with respect to other women—not surprisingly, men do not suffer any penalty for being fathers per se, only for wanting to or trying to spend time with their families. Ironically, the employees most likely to have sick leave or even paid family leave are precisely those who already have the most protections under the law—high earning, and mostly white and male.

Professor Joan Williams, a law professor at the University of California’s Hastings College of the Law and founding director of the Center for WorkLife Law at the University of California Hastings College of the Law, has pioneered the idea of family responsibility discrimination as a type of discrimination that should be subject to challenge under the civil rights statutes. According to the Center for WorkLife Law, “Family Responsibilities Discrimination (FRD), also called caregiver discrimination, is employment discrimination against workers based on their family caregiving responsibilities. Pregnant women, mothers and fathers of young children, and employees with aging parents or sick spouses or partners may encounter FRD. They may be rejected for hire, passed over for promotion, demoted, harassed, or terminated—despite good performance—simply because their employers make personnel decisions based on stereotypical notions of how they will or should act given their family responsibilities.” The lawsuits based on this theory have increased 400 percent from 1998 to 2008.

If the approach taken by the EEOC withstands the inevitable attacks and more courts accept family responsibility discrimination as a basis for a lawsuit, we will have begun to dismantle the bias against women as mothers, potential mothers, and caregivers. But that’s just a beginning in strengthening the laws meant to protect us.

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