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The Pregnancy Penalty

By Jennifer Bennett Shinall. Full text here.

Abstract: “Just forty years ago, employers legally could—and often would—discriminate against pregnant women in the workplace. Employment discrimination protections for pregnant women have vastly expanded since that time with the passage of the Pregnancy Discrimination Act (PDA) in 1978 and the Americans with Disabilities Act (ADA) in 1990. The reach of these statutes has expanded over the past decade, but many argue protections for pregnant women under the PDA and ADA remain inadequate. These arguments have been almost wholly based on accounts from litigated cases, with very little sense of the representativeness of these cases. Lack of relevant data and empirical scholarship have left scholars unable to say much about how a typical working woman is affected by pregnancy. Even now, virtually nothing is known about the frequency of, or the motivations behind, pregnancy discrimination in the labor market, which has undercut scholars’ ability to evaluate the performance of existing laws and the need for additional reform.

This Article is the first to fill in this missing, but critical, link within the pregnancy literature. Using data from the Behavioral Risk Factor Surveillance System, the Article documents a significant gap between the employment outcomes of pregnant women participating in the labor market and those of nonpregnant women. This pregnancy-based employment gap, which has persisted in spite of recent expansions in relevant legal protections, is as large and persistent as other well-known employment gaps along racial and ethnic lines. The data show that this pregnancy penalty goes well beyond the employment penalties for women who are mothers and can be most problematic for women who gain weight, become disabled, or have low levels of income or education. Relying on these findings, the Article concludes that improving the status of pregnant women in the workplace must become a priority for legislative reform and, using the data, demonstrates why the solution previously advocated by most scholars, the Pregnant Workers Fairness Act, is unlikely to be effective. Instead, the data reveal how new legislation based on already existing state paid family leave laws can successfully close the pregnancy-based gap in employment.”