Elizabeth Warren’s Story Shows Why Pregnancy Discrimination Is So Insidious

Warren, though, has stood by her description of the event—and in so doing started a conversation about the on-the-ground reality of pregnancy discrimination. While clear-cut examples of women losing their jobs over their pregnancies do exist (especially in blue collar professions), such discrimination is typically more subtle, say experts. It can take the form of bias in hiring, the bypassing of women who are pregnant—or thought likely to become pregnant—for promotions or plum assignments, or other slights that endanger women’s job security and stop women them from progressing in their careers.

Pregnancy discrimination is part of what Joan Williams, director of the Center for WorkLife Law at the University of California, Hastings College of Law, calls “maternal wall” or “family responsibilities” discrimination; the category also includes discrimination based on breastfeeding, motherhood, or accommodations needed during pregnancy rather than the pregnancy itself. “It’s the single strongest form of gender discrimination,” Williams says.

Warren’s story

The Washington Free Beacon published minutes from an April 1971 Board of Education meeting in Riverdale, New Jersey that showed Warren was offered a second-year teaching contract. According to June 1971 meeting minutes, Warren, then 22, rejected the contract.

Warren maintains that she was pushed out for being pregnant; her bosses didn’t know about her pregnancy in April, she says. “By June I was visibly pregnant—and the principal told me the job I’d already been promised for the next year would go to someone else,” Warren wrote on Twitter on Tuesday. She often uses the phrase “showed me the door” to describe how she says the school principal pushed her out of the position.

That framing reflects how pregnancy discrimination often works in the real world—especially in the modern era, says Andrea Johnson of the National Women’s Law Center. “We see less ‘You’re pregnant and on that basis alone we’ll fire you.’ Employers have an understanding that that’s illegal,” she says. “But we see other excuses.” One common example: Companies who fire a pregnant woman because they need certain accommodations—such as extra bathroom breaks—or are no longer able to perform certain aspects of the job—such as lifting heavy objects. (In both cases, such a firing is illegal.)

Rather than outright firing a woman who is pregnant, managers and employers will sometimes make it clear to the employee that she is not welcome to stay. Trudy Randall, a retired teacher at Riverdale Elementary, told CBS News that that was a frequent scenario at the school during the time Warren taught there. “The rule was at five months you had to leave when you were pregnant. Now, if you didn’t tell anybody you were pregnant, and they didn’t know, you could fudge it and try to stay on a little bit longer,” Randall said. “But they kind of wanted you out if you were pregnant.” Dana Goldstein, a New York Times reporter who wrote The Teacher Wars, a history of the teaching profession in the United States, noted on Twitter that the practice was common through the 1970s, usually without a paper trail. When Warren taught at Riverdale Elementary, pregnancy discrimination wouldn’t be enshrined as illegal for another seven years.

Legal protections

The Pregnancy Discrimination Act passed by Congress in 1978 amended Title XII of the Civil Rights Act to clarify that discrimination based on pregnancy was a form of sex discrimination, and therefore illegal. It wasn’t until the early 2000s that courts ruled that discrimination based on motherhood was also part of that category, Williams says.

In one of the highest-profile recent decisions on pregnancy discrimination, the Supreme Court decided in 2015’s Young v. United Parcel Service that employers could not provide accommodations like “light duty” as UPS driver Peggy Young had requested for workers who require it for conditions other than pregnancy, but not for pregnant workers.

And yet pregnancy discrimination continues—through the denial of accommodations like in Young’s case, retaliation for asking for those accommodations, harassment of pregnant women for things like using the bathroom more frequently, and the general perception that pregnancy is “incompatible with work,” notes Johnson. It’s a through line from the era when Warren worked at a public school, when employers often prevented women from working for “paternalistic” reasons—e.g. “we’re doing this to protect you”—she adds.

While discrimination based on pregnancy outright has been illegal for 40 years, employers continue to discriminate in subtler ways. “We still define the ideal worker as someone who starts to work in early adulthood and works full-time, full-force for 40 years straight and takes no time off for childrearing,” Williams says. “As long as we define the ideal worker that way, we’re going to have pregnancy discrimination.”

Pregnancy discrimination today

So, more than four decades after pregnancy discrimination became illegal, what does the problem look like today? In April, the New York museum MoMA PS1 settled with a curator who alleged she had a job offer rescinded in 2017 after revealing she had recently given birth. A recent memo by a Google employee alleged that a woman’s manager made discriminatory comments about pregnant women, and that the employee was retaliated against when she reported him; she chose not to return to the tech giant after her maternity leave. (Google says it prohibits retaliation in the workplace.) A New York Times story in 2018 investigated pregnancy discrimination throughout corporate America, including at companies such as Merck and Walmart. (At the time, Merck said the company has a strong non-discrimination policy and Walmart said it “disagree[d] that a specific request for accommodations due to pregnancy was made and that we denied that request.”) And its not a phenomenon limited to employees who work at offices or warehouses: This year, a group of female track stars went public to say that Nike had ended their endorsement deals after they became pregnant. The company has since ended financial penalties for sponsored athletes whose performance suffers due to pregnancy.

Pregnancy discrimination is tied to other forms of discrimination as well. A study by the Center for WorkLife Law earlier this year found that two-thirds of breastfeeding discrimination claims—encompassing everything from sexual harassment by co-workers while breastfeeding to employers not providing their employees with time or space to breastfeed while on the job—resulted in women losing their jobs.

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