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Pregnancy Discrimination in the Workplace: Biology is Not Destiny


For many women, pregnancy discrimination in the workplace is a reality―or at least a real fear. The other day, my partner and I found out that his newly-married cousin was pregnant. It was a surprise to her, and a delight to the family. Instead of questions about gender, due dates, baby showers, or bigger apartments, however, the first question on everyone’s lips was whether or not she had passed the three-month the probationary period of her new job. The period d’essai is a shaky time for any new hire in France, as an employer has license to fire an employee without an obligation to justify the dismissal, but it is an especially shaky time for women of child-bearing age, namely because women of child-bearing age are seen as carrying risks and expenses that their male counterparts do not carry as a result of both their anatomy and societal role as mothers.

While anti-discrimination laws exist to protect pregnant women in almost every developed country, a number of studies have shown that these laws have done little to change perception or practice regarding the hiring of pregnant, potentially pregnant, or soon-to-be pregnant women.  A 2009 survey by recorded that 81% of British business managers “would ask female job applicants if they were pregnant, planned on having children or already had children” if they could.  What’s worse, “almost 50% of managers admit to factoring in a woman’s age and relationship status when trying to establish whether they could potentially be getting pregnant in the future.”


Undeniably, pregnancy discrimination exists, and it has not been getting any better. In fact, there is evidence that it is getting worse. The Washington Post recently reported a23% increase in the number of pregnancy discrimination cases filed with the Equal Opportunity Commission of the United States between 2005 and 2011, which raises questions about whether or not  this increase is correlated to the economic crisis. I put forth this conjecture not only because 23% is a massive increase, because also because one of the biggest justifications I hear for jumping on the pregnant-women-are-liabilities bandwagon is that working women who have children end up costing a company money, since the company must allegedly hire a replacement or pay for overtime hours (in addition to her normal salary) during her excessively long and burdensome maternity leave.  Thus, during times of recession, when employers are attempting to cut costs everywhere, it seems more likely that women would be viewed as a liability given these assumptions. In fact, I have heard these reservations from the mouths of both men and women alike, from director-level management officials to associate-level recent hires. As a result, I would like to address these assumptions individually, in order we might debunk the myth that maternity leave ends up costing companies insufferable amounts of money and also, perhaps, to help us understand that what is typically viewed of as a woman’s costly biological destiny is, in fact, a simple failure of policy.

Myth 1: The company must hire a replacement or pay for overtime hours for expecting mothers during maternity leave: False. The question of overtime hours assumes all employees are hourly employees working at maximum efficiency, while the question of replacement assumes that a company hires a replacement for every  employee, and this is simply not the case. Although it is difficult to find comparative data on this for other countries, in the United States, the overwhelming majority of companies do not hire replacements for employees on family or medical leave.  A survey conducted in 2000 to follow up on the 1993 United States Family and Medical Leave Act (FMLA) demonstrated that only 41.3% of employees hire temporary replacements; in contrast, 98.3% delegate work to other employees. Thus, as the Department of Labor states,” the most common method of covering the work of leave takers” is to “assign it temporarily to other employees.”

Myth 2: The company must pay the salary of the employee who is on maternity leave. False, in most developed countries it is the state that pays for maternity leave, with the exception of the United States, because the United States is one of the few developed countries that does not provide for any paid maternity leave. In fact,a 2005 article surveying 16 European countries, Japan, and the United States, found the United States to be the only country not providing for paid maternity leave.  Indeed, the FMLA requires that companies only provide up to 12 weeks of job-protected, unpaid leavefor eligible employees. If the employee has accrued paid time off, he or she can extend this period to 26 weeks in a single 12 month period by using vacation hours (however, given the comparatively smaller number of average vacation hours per year in the United States, this seems unlikely).

In most other developed countries, a social security or insurance system pays a portion of the mother’s salary. In France, for instance, expecting mothers receive a rather generous per diem amount from the social security administration based on her last three months wages at a maximum of € 3,031 per month.  This paid leave is available six weeks from mother’s expected due date, and 10 weeks after, for a total of 16 weeks for normal pregnancies, with more time added for complications or multiple births. There are additionally Caisses d’Allocations Familiales (CAF), which provide additional funds for low-income mothers or couples.  Canada has in place a government-run Employment Insurance (EI) program that provides maternity and parental benefits to employees for a maximum of 15 weeks for maternity leave, and 35 weeks for parental leave, based on pay earned 26 weeks prior to the leave.  Similar to France, Canada has an EI Family Supplement for low-income families.  In Switzerland, the social security insurance, l’assurance-vieillesse et survivants (AVS), pays 80% of the employee’s salary, at a maximum of 172 Swiss francs per day, for a maximum of 98 days (14 weeks).  The United Kingdom, in contrast, is one of the few nations with mandatory employer-paid maternity leave, where, for the first 6 weeks of statutory maternity leave, the employee is entitled to 90% of their average weekly earnings. For the remaining 33 weeks, the amount is £135.45 per week, or 90 per cent of average gross weekly earnings, whichever is less ( after statutory maternity leave has been taken, new mothers can also take an 36 weeks of additional maternity leave, which is unpaid).  It is worth mentioning, however, that some of the maternity pay is recoverable from Her Majesty’s Revenue and Customs (HMRC), and 100% is recoverable for small business owners. Thus, the United Kingdom does at least partially  pay for maternity leave through employer reimbursement.

Myth 3: Maternity leave is excessively long and burdensome. This is neither true nor false, because it is a social attitude, and cannot be explained by comparing numbers and figures.  One thing is certain, however, and that is the social and economic necessity of reproduction, and corresponding medical necessity of early parent-child bonding. Nicole Adams, an Advanced Nurse Practitioner with a specialization in Mental Health, emphasizes the importance of parent-child bonding, stating, “Neglected babies, those forced to ‘cry it out’ for long periods of time, have smaller brains, greater emotional dysregulation problems, and higher amounts of psychiatric illnesses when they grow up.” Given thelogistical difficulties breastfeeding working mothers face and US Surgeon General Regina Benjamin’s recent “call to action” extolling the health benefits of breastfeeding for mother and child, it is arguable that babies require their parents’ presence for both physical and psychological health.

In short, if you thought that the women’s rights movement of the mid-20th century had “fixed” discrimination against  women in the workplace, you couldn’t be more mistaken. While the women’s movement arguably succeeded in demonstrating that women are intellectually capable of carrying out the same employment functions as their male counterparts, women’s biological and social role in reproduction has redoubled as the predominant justification for gender-based workplace discrimination. Globally, labor policy needs to do more to address what is essentially a continuation of the myth that “biology is destiny.” Globally, we can attempt to change the Eve’s burden mindset of child-rearing by changing the statutory language of maternity leave to “parental leave,” and allowing men equal or shared access to its benefits. In situations such as the United Kingdom, where the cost associated with maternity leave is at least partially an employer responsibility, the cost of maternity leave should be shared equally with the employer of the father-to-be, or, if unemployed or retired, a social security or insurance system. This legislative solution could even be put in place to cover employer-related administrative costs associated with pregnancies (hiring a replacement, human resource expenses, etc.) in countries that offer paid maternity leave through a social security or social insurance program.  In these situations, women would not be solely responsible for the employer-induced costs of maternity leave, the perceived cost-burden is shared between men and women, and the cost-based justification for pregnancy discrimination in the workplace is eliminated.  In countries that offer employer-friendly probationary periods, such as France, employers could be obliged to justify reasons for dismissing individuals during the period d’essai to ensure that the grounds for the dismissal are not discriminatory in nature. Legislation could also be introduced to address the French expectation that individuals list their age, gender, marital status, and number of children on their CVs, to ensure that this information is not being used as a basis for discrimination.

In reference to gender-based discrimination in the workplace, one thing is certain, and that is that things are not ok. If the discriminatory attitudes of human resource professionals, number of pregnancy-related cases filed with the Equal Opportunity Commission, or simple fact that a woman still makes 77 cents on every dollar that a man makes are not sufficient enough motives for both men and women to demand change, then consider this: social security systems around the globe are at risk for becoming insolvent because fertility rates are not high enough to combat lengthening life expectancies, do we really want to discourage women from investing in an integral part of our retirement plans?

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