On May 8, 2009, ABC’s 20/20 aired a program hosted by John Stossel meant to take a controversial look at issues ranging from the preservation of endangered species to pregnancy discrimination, titled “You Can’t Even Talk About It.”  The segment on pregnancy discrimination, which asks, “Should companies fire women for getting pregnant?”, begins ominously: “A woman at your office is pregnant.  She’s going to miss some work and cost the company money.  So is the company free to pay her less or even fire her?” Stossel’s logic sounds reasonable, even tempting, right? Well, no.

 

Stossel bemoans the fact that, thanks to the Pregnancy Discrimination Act (PDA), today employers are warned that you can’t even ask in a job interview, “are you pregnant?” or “might you start a family?”. 

(The PDA holds that discrimination on the basis of pregnancy, childbirth or related medical conditions constitutes unlawful sex discrimination under Title VII, and requires that women affected by pregnancy or related conditions must be treated in the same manner as other applicants or employees with similar abilities or limitations.)

 

Stossel then interviews Carrie Lukas, the Vice President of Policy and Economics for the Independent Women’s Forum, who believes that employers should be able to fire women for becoming pregnant.  (Curiously, Stossel fails to mention that the IWF is an ultra-conservative organization which, for instance, takes the position that Title IX has institutionalized discrimination against men.  Lukas explains that she is taking her third maternity leave in four years; it is her position that “if my employer decides they no longer want me as an employee, then it should be their right to fire me.”

 

Stossel and Lukas’ arguments appear to be based on two flawed arguments: One, that pregnant women impose undue costs on employers, and two, that anti-discrimination laws (presumably all types—discrimination based on race, ethnicity, religious beliefs, gender, sexual orientation, disability) actually work to harm people falling in those protected classes.

 

The first argument is made by both Stossel and Lukas.  Lukas claims that her colleagues pick up her “slack” when she’s at a pregnancy-related doctor’s appointment.  Stossel asserts that companies should be free to pay employees what they think an employee is “worth”—which is apparently less as a pregnant woman.  This line of thinking singles out pregnant women in a way that treats them unfairly compared to employees with temporary illnesses or medical conditions.  Pursuant to the PDA, if an employee is temporarily unable to perform her job because of her pregnancy, the employer must treat her the same as any other temporarily disabled employee.  Thus, the PDA merely requires employers put pregnant employees on equal footing as other employees with temporary disabilities— for example, if a coworker with a broken leg is given less physically stressful work while injured, the employer must offer a pregnant employee similarly easier duties while pregnant.  

 

The second argument is purportedly made out of concern for women.  Stossel states that the PDA creates problems for women because, according to him, once Congress decides some group deserves “special protection,” employers simply refuse to hire persons in those classes.  And, Lukas claims that because of the PDA “all of a sudden a potential employer is looking at me and thinking, she just might turn around and sue us.  That makes it less likely that I’m going to get hired.”  So, because of the PDA, women (regardless of intention to become pregnant) in the workforce are walking, talking “lawsuit bombs,” if you believe Stossel.

 

Stossel says that Congress was wrong to think that the PDA would end pregnancy discrimination, and cites the many lawsuits brought pursuant to it to support his claim.  But this is backwards thinking—lawsuits were brought because the new law offered pregnant women who were discriminated against protection.  Yes, John, pregnancy discrimination lawsuits are on the rise—because employers continue to discriminate against women based on pregnancy! With our country’s history of racism, sexism, and homophobia, how can we just expect employers to “do the right thing”? The government intervenes to protect “discrete and insular minorities,” as the famous footnote in Carolene Products suggested, as it should.  Congress intervened to address racial and sex-based discrimination in the workplace with Title VII.  And because pregnancy discrimination is intimately tied with sexism and stereotypes about women and harms working families, it is no wonder that Congress enacted the PDA.

 

In a different segment on the same topic, Stossel interviews Debra Ness, president of the National Partnership for Women and Families, and, in what appeared to be an ill-advised “slippery slope”-type argument, likened pregnancy discrimination to discriminating against “stupid, dumb, and lazy people.”  Stossel persisted with his argument that discrimination laws hurt the very people they’re meant to protect, saying that an employer can hire a man—who is evidently not a lawsuit “bomb”—but if the employer chooses to hire a woman, “I’m stuck, I can never fire her.”  Stossel then mused, “I discriminate all the time. . . isn’t that a part of life? The question is where you draw the line, where it’s legal, where it’s not?”  Well, for starters, it’s illegal when it’s not based on any relevant aspect of job performance. 

 

So, what is Lukas’ and Stossel’s proposed solution? An idyllic world, it would seem.  Lukas claims that “lots of employers would hire pregnant women” (even though according to her they impose costs and create more work for other employees).  She maintains that the best way to prevent discrimination is by implementing a free market system—that because discrimination is a “bad business practice,” people won’t want to work for companies that discriminate, and the system will just magically regulate itself.  However, her argument is based on several tenuous positions: all or most women entering the workforce wish to become pregnant; women who become pregnant become a liability to their employers; in a free market, employers wouldn’t engage in pregnancy discrimination anyways, because it’s “the right thing to do.”  I am not so confident.  Anti-discrimination laws are needed precisely because the system does not regulate itself.  The “sharing of responsibilities” at her workplace due to her pregnancy-related absences that Lukas decries is exactly what happens in numerous other circumstances that flexible workplaces—when employees are ill or have ill family members, for instance—manage without complaint.  Treating pregnancy differently simply reinforces sexist and stereotypical notions about women in the workplace.

 

-Amanda Allen

 

This entry was posted on Monday, May 18th, 2009 at 9:11 pm and is filed under pregnancy. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.