Subtle but Pervasive: Discrimination against Mothers and Pregnant Women in the Workplace
Reuter, Alison A., Fordham Urban Law Journal
Laurie Anne Freeman, a world-renowned expert on information technology and Japanese politics and a professor in the Political Science Department at the University of California, Santa Barbara, received extremely positive reviews from her department until she had two daughters and took leaves to be with them. (1) The reviews she received after returning from her leaves were increasingly critical of her research and productivity. (2) Despite family-friendly university policies, including rules that prohibited consideration of leave time when evaluating productivity, the department repeatedly evaluated her earlier than scheduled and compared her unfavorably with professors who had not taken leaves. (3) When Freeman came up for tenure, she had an impressive list of accomplishments including two prestigious fellowships, one book published and one under contract, and invitations to present her work at leading institutions including Harvard and Stanford. (4) Overwhelmingly negative assessments from her department, however, culminated in a unanimous recommendation to deny tenure. (5) But that was not the end of the road for Freeman. (6)
The Chancellor sent Freeman's case back to the Political Science Department for a new tenure review. (7) Again, the department at tacked her scholarly work. (8) This time, however, the Chancellor could not overlook the overwhelmingly positive assessment of experts in her field and her outstanding resume. (9) The Chancellor granted her tenure. (10) Freeman was not satisfied; she filed a charge of sex discrimination with the Equal Employment Opportunity Commission (the "EEOC"), alleging that her decisions to have children and to use the university's family-friendly policy were the real reasons for her tenure denial. (11) On September 6, 2005, Freeman was granted a rare EEOC cause determination. (12) Charlotte Fishman, Freeman's lawyer, said that she thought the cause determination was important because it drew attention to the sex-plus discrimination that women face in academia. (13) Sex-plus discrimination, however, is not limited to academia. Freeman's story highlights the discrimination that women face in the workplace, even at so-called family-friendly institutions.
Despite legislation designed to promote equality for women and mothers in the workplace, including Title VII of the Civil Rights Act of 1964 ("Title VII"), the Pregnancy Discrimination Act (the "PDA"), and the Family and Medical Leave Act (the "FMLA"), discrimination persists. Role-reinforcing stereotypes (14) and the male-centric job model (15) continue to constrain women. The existing statutes are in large part narrowly applied by the courts and, as written, are insufficient to curtail the problem. The passage of the PDA acknowledged that pregnancy discrimination is a problem and began to roll back the paternalistic treatment of pregnant women, (16) but the PDA has not significantly alleviated the problem of pregnancy discrimination. It has been construed narrowly so that in many jurisdictions it covers only discrimination arising from pregnancy itself, as distinct from its side effects. (17) And the PDA does not grapple with many fundamental issues necessary to secure equality for women in the workplace and at home, such as how to structure the provision of childcare and breast-feeding. Women can attempt to pursue these claims as sex-plus claims under Title VII, but that route has proven to be generally unsuccessful. (18) Thus, many women are left unprotected from discrimination in the workplace based on their status as mothers, childcare providers, and producers of breast milk.
According to one possible indicator, the number of charges filed with the EEOC, pregnancy discrimination is on the rise. (19) With more than sixty-eight million women in the workforce, including 72.9 percent of women with children under age eighteen, (20) in recent years the EEOC has seen a thirty-five percent increase in the number of pregnancy discrimination charges filed when compared with the number of charges filed in 1992, (21) even though the United States has seen a nine percent reduction in its birth rate. …