What is pregnancy discrimination? How can you avoid being put on the “mommy track?” In this piece, attorney and women's rights advocate Daphne Delvaux answers these questions and provides five things moms can do.
As an employment lawyer and a mother, I hear many stories about mom bias at work. Moms are denied promotions, lucrative clients, and bonuses, while non-pregnant employees with less seniority and worse performance are given all of these opportunities. Moms are given eye rolls when they ask to attend parent-teacher conferences or when they ask for flexible work schedules. Moms are forced out of their jobs after they give notice of their pregnancy, or right before or after maternity leave. Moms are denied the maternity leave they're entitled to because their bosses “only took six weeks off.” Moms are told, “That’s what you get for hiring women.” Moms are told, “Your upcoming leave is an inconvenience to the business.” Moms are told they are using the restroom “too often” when they experience morning sickness, or are sent to the restroom to pump.
But isn't this discrimination? Isn't discrimination illegal? Why does it still happen? And what do we do when it happens to us? I'll cover the answers to these questions in this article.
What is pregnancy discrimination?
Under the law, a pregnant woman may not be treated differently or adversely on account of her pregnancy. Employers may not refuse to hire, select for training, promote, and may not terminate an employee because of pregnancy, breastfeeding, or pregnancy-related conditions.
An employer may not discriminate or retaliate against a parent for taking leave. An employer cannot use a woman taking maternity leave as a negative factor in decisions such as hiring, promotions or discipline.
An employer will rarely tell the mother that the reason for the different treatment is her pregnancy or maternity leave. It will usually be about "revenue problems" or "not meeting performance expectations." That does not mean the bias isn't there. The way to recognize discrimination is to look at how the employer will treat other non-pregnant workers. Are they treated better than you? Were you treated better before you gave notice of your pregnancy or need for maternity leave or accommodations? Are you suddenly reprimanded for things you did a long time ago or are you disciplined for things other employees do without repercussions? Is there a pattern of comments such as, "You better not leave us hanging," or "Once you have that baby you probably won't come back?" These are all signs of pregnancy discrimination. Be vigilant.
Why does pregnancy discrimination still happen?
Many people can’t fathom someone discriminating against a pregnant woman. After all, doesn’t everyone love babies? But it does happen. The motivation behind pregnancy discrimination is not in the fact that the woman is pregnant. Many of these bosses are parents themselves. Instead, the frustration lies with the upcoming absence, and the employer’s obligation to find replacements and coverage. There’s also frustration with having to give the woman back her job when she returns from leave, and the employer’s conflicting interests to ensure staffing continuity for their clients or customers. Often, the discrimination seeps in with the second or third pregnancy, as if the mother has exhausted her privileges. We call this "Second Baby Syndrome." Yes, there's a term for it because it happens so often.
Mom bias is based on a deep-rooted belief that it’s better to have employees without obligations at home.
Many employers will treat workers who are 100% focused on work better than those with family obligations. There’s an assumption moms will no longer be devoted to the job after the baby is born. To preempt the mother leaving the workforce, the employer may intentionally or unintentionally create a situation where the mother feels unwelcome and unsupported, in an attempt to get her to leave the job. Sadly, many mothers do. But we shouldn't have to.
How do I avoid the "Mommy Track"?
The "mommy track" is the track of less opportunities on the sole basis that you are a mother. When an exciting new project comes through the door, the mommy track prevents you from receiving this project because your employer is concerned you can't attend late night meetings. When a selection is made of who will present a new product at an important conference, mommy track will prevent you from being picked because your employer assumes you cannot travel. Mommy track is the presumptuous belief that you are less interested in the job and no longer fully capable of performing at the same level as the other employees, and therefore less deserving of professional advancement.
As all moms know, this is a myth. In my experience, moms are very committed employees. They come in, get the work done, and go home without wasting anyone’s time. They can work under pressure, they are master organizers, and are used to chaos and stress. They are resilient. When they show up, it means they made a choice to leave their children so they could work, either for financial reasons or because their work is important to them. How is that for proof of loyalty?
The mommy track will not go away any time soon. But there are tools to stay off it:
1. Know your rights
If you feel like no one is helping you, you can take comfort in the fact that the law is on your side. When you know your rights, you will also know how to use them. Does this take confidence? Yes. Is it scary? Also yes. Mama, I know you're worried about losing your job. But knowing your rights will give you courage and it will give you a roadmap.
2. Educate your employer
Do not assume your employer is giving you accurate information about your rights. These regulations are complicated and change every year. Many HR professionals are proficient in these regulations and know how to enforce them, but some don't. Many HR professionals take their job of protecting the employees from abusive managers very seriously, but some will stay loyal to management regardless of their actions.
There are a lot of misconceptions about moms' rights. In California, many moms are given less maternity leave than they are entitled to, because employers do not understand the rules about stacking leaves. Mothers working for employers with 5 to 19 employees are entitled to 4 months of maternity leave, but mothers working for employers with 20 or more employees can stack an additional 12 weeks on top of these 4 months if they are eligible (with up to 18 weeks of state benefits at 60-70% salary).
Upon return from leave, parents have to be immediately reinstated to the same or a comparable position. Mothers have to be provided a break to express breastmilk. If a mother needs an accommodation, the employer must grant it as long as it's reasonable, not an undue burden, and the mother can still perform the essential functions. Reasonable requests are a chair, a temporary work-from-home arrangement, additional breaks or a finite extended leave of absence. Unreasonable requests are daily cookie deliveries by Ryan Gosling or a nap pod (If only...)
3. Framing your request: be patient and understanding
Remember that we are changing the status quo. This takes time. While it's important to educate your employer on your rights, don't assume your employer does not want to work with you to figure out any misunderstandings. The basis for any breakdown between the employer-employee relationship is this: women are afraid to ask for accommodations because they don't want to get fired, the employers are afraid to give accommodations because they are afraid the mother will not return to work. Often, this will result in the mother leaving this job, even though she may have been able to stay if there would have been better communication.
Don't barge into your boss's office saying, "I'm entitled to..." or "You owe me..." Framing is important: "I really enjoy working here and I have a few ideas to increase visibility for our company. As you may have seen, a lot of companies are creating family-friendly workplaces in an effort to retain talent and reduce turnover. I've created a ramp-up plan for parents returning from parental leave. Research shows that many parents are forced to leave their jobs in the first year of parenthood. This plan would be a temporary accommodation for new parents where they could perform part of the work from home. I propose we try it out for six months. If it doesn't work, we can still return to the original policies of 100% on-site attendance. If it does work, I promise I will talk about your efforts to help parents in every professional network, and I will submit articles about the success of this plan to local business groups."
You have to frame your request for accommodations in a way that it will benefit the employer. You also need to acknowledge your employer's fear: "I understand you are worried that parents will take advantage of flexibility, but everyone will still be expected to perform their duties. We can set up meetings through zoom. We can do monthly in-person assessments of the workload." Be creative!
4. Seek allies
Try to find other parents who would benefit from your requests. It is always more likely for an employer to grant a collective request instead of an individual request. If you are the first mother, you have an opportunity to be a trailblazer and create new policies for all women. How amazing is that!
5. In case of a breakdown, talk to someone
Sometimes, a mother can do everything in her power to keep both her boss and her baby happy, but she still ends up without a job. As a mother myself, these stories make me thunder with injustice. Being forced out of a job when a woman is pregnant or just had a baby is scary. While she should be enjoying her new baby she is lying awake worrying about bills and healthcare. The stress can cause depression and anxiety in an already demanding time period. Right when she’s at her most vulnerable, she now has to worry about finding a job or fighting for her job. Many moms tell me they still mourn that the difficulties with their employers tainted their bonding time with her newborn baby.
In my opinion, discriminating against pregnant women or new moms is an emotional robbery of a stress-free maternity leave. This is a sacred time. We have a collective responsibility to welcome new babies into this world by making sure mom feels safe and secure. We have to be conscious of mom bias in hiring, promoting, and firing. We can’t assume moms can’t handle the job as well as an employee without kids. But still... mom bias is real. It's not all in your head. If you are being subjected to mom bias, make sure to talk to someone. Don't minimize the experience. Talk to friends, family, woman's advocates, or counselors, and most importantly, other mothers.