LABORING AFTER LABOR: APPLYING USERRA’S JUST CAUSE PROTECTION TO PREGNANT AND POSTPARTUM WORKERS

Most American workers labor at will, meaning that employers may fire employees for any nondiscriminatory reason or no reason at all. Employers can even dismiss workers for seemingly unfair or arbitrary reasons. This fraught employment relationship has long resulted in a power imbalance for workers. That imbalance is particularly pronounced for pregnant and postpartum workers, who face disproportionate rates of discrimination at work. Even though pregnant and postpartum workers face greater discrimination than other subsets of workers, proving that discrimination using the burden-shifting framework articulated in McDonnell Douglas Corp. v. Green is unduly difficult under the at-will system. Despite some reform at the state and local levels and calls for just cause reform—which would require employers to provide a reason before terminating an employee—the at-will system prevails as the default rule in the American employment relationship. Significantly, however, one federal statute provides just cause protection: the Uniformed Services Employment and Reemployment Rights Act (USERRA).

This Note provides a path to just cause protection for pregnant and postpartum workers by amending the Pregnancy Discrimination Act (PDA). Modeled after USERRA’s just cause protection for veteran workers, this new system would help pregnant and postpartum workers prove their discrimination cases under the McDonnell Douglas burden-shifting framework. Both servicemembers and pregnant workers must leave their jobs for a set period of time, and both are particularly vulnerable upon reemployment. Therefore, this Note argues that both deserve similar reemployment protections.

The full text of this Note can be found by clicking the PDF link to the left.

* J.D. Candidate 2023, Columbia Law School. Thank you to Professor Kate Andrias for inspiring this project and providing guidance throughout the process, to Sarah David Heydemann for her thoughtful feedback and invaluable insight, and to the entire staff of the Columbia Law Review—past and present—for their outstanding contributions. Most importantly, thank you to my family for their unwavering love and support

INTRODUCTION

Nearly 70% of women today work during their pregnancies, 1 Carly McCann & Donald Tomaskovic-Devey, Ctr. for Emp. Equity, Pregnancy Discrimination at Work: An Analysis of Pregnancy Discrimination Charges Filed With the U.S. Equal Employment Opportunity Commission 8 (2021), https://www.umass.edu/
employmentequity/sites/default/files/Pregnancy%20Discrimination%20at%20Work.pdf [https://perma.cc/4BRB-9WGJ]. and 85% of working women will become mothers at some point in their careers. 2 Bryan Robinson, Pregnancy Discrimination in the Workplace Affects Mother and Baby Health, Forbes (July 11, 2020), https://www.forbes.com/sites/‌bryanrobinson/‌2020/07/‌11/pregnancy-discrimination-in the-workplace-affects-mother-and-baby health/?sh=10f4db26cac6 (on file with the Columbia Law Review). Pregnant workers continue to work further along in their pregnancies than their mothers and grandmothers did. 3 See George Gao & Gretchen Livingston, Working While Pregnant Is Much More Common Than It Used to Be, Pew Rsch. Ctr. (Mar. 31, 2015), https://www.pewresearch.org/fact-tank/2015/03/31/working-while-pregnant-is-much-more-common-than-it-used-to-be/ [https://perma.cc/S9XL-92B3] (“In the early 1960s, most working women pregnant with their first child (65%) stopped working more than a month before the birth . . . . By the late 2000s, that trend had reversed. About eight-in-ten pregnant workers (82%) continued in the workplace until within one month of their first birth . . . .”). Pregnant and postpartum workers are an essential part of the labor force, but when employers find out about a worker’s pregnancy status, they often react adversely. 4 See Dina Bakst, Opinion, Pregnant, and Pushed Out of a Job, N.Y. Times (Jan. 30, 2012), https://www.nytimes.com/2012/01/31/opinion/pregnant-and-pushed-out-of-a-job.html (on file with the Columbia Law Review) (“[T]housands of pregnant women are pushed out of jobs that they are perfectly capable of performing . . . when they request an accommodation to help maintain a healthy pregnancy.”); Natalie Kitroeff & Jessica Silver-Greenberg, Pregnancy Discrimination Is Rampant Inside America’s Biggest Companies, N.Y. Times (Feb. 8, 2019), https://www.nytimes.com/interactive/2018/06/15/business/pregnancy-discrimination.html (on file with the Columbia Law Review) (“Whether women work at Walmart or on Wall Street, getting pregnant is often the moment they are knocked off the professional ladder.”). Pregnant and postpartum workers are often seen as unreliable, unavailable, and bad for business. 5 See Judy Clair, Kristen Jones, Eden King & Beth K. Humberd, The Right and Wrong Ways to Help Pregnant Workers, Harv. Bus. Rev. (Sept. 27, 2016), https://hbr.org/2016/09/the-right-and-wrong-ways-to-help-pregnant-workers [https://perma.cc/58W9-AL48] (“Pregnant women . . . are viewed as less competent and capable . . . .”). Though pregnant workers are often stigmatized in this way, evidence suggests that creating supportive environments for pregnant workers leaves everyone better off, including the employer. See Accommodating Pregnant Workers Is Good for Business, Nat’l Women’s L. Ctr. 2 (2020), https://nwlc.org/wpcontent/uploads/2020/01/New-PWFA-Factsheet.pdf [https://perma.cc/469X-GJ6F] (concluding that providing accommodations for employees benefits businesses overall because almost 90% of surveyed employers reported that accommodations allowed them to retain employees, and 59% reported that accommodations eliminated the cost of training new employees). Even a simple request for maternity leave can cause an employer to dismiss an otherwise good employee. 6 See Kitroeff & Silver-Greenberg, supra note 4 (describing Walmart’s denial of accommodations and subsequent firing of Otisha Woolbright, who asked to stop lifting heavy things at Walmart, provided a physician’s note saying she was at risk of miscarrying, and asked about maternity leave when the accommodation was denied). Ms. Woolbright filed suit against Walmart, alleging pregnancy discrimination under the PDA. Complaint at 16, Borders v. Wal-Mart Stores, Inc., No. 3:17-cv-00506 (S.D. Ill. filed May 12, 2017), 2017 WL 2062862. The court approved a $14 million settlement for the class of almost 4,000 workers. Erin Mulvaney, Walmart’s $14 Million Deal With Pregnant Workers Gets Approval, Bloomberg L. (Apr. 29, 2020), https://www.bloomberglaw.com/bloomberglawnews/daily-labor-report/XMHECCO000000?bna_news_filter=daily-labor-report#jcite (on file with the Columbia Law Review). Pregnant people of color and low-income pregnant people, in particular, face unparalleled discrimination in the workplace and report dispro-portionate rates of discrimination for their share of the labor force. 7 See McCann & Tomaskovic-Devey, supra note 1, at 18 (“[W]omen in low wage jobs are particularly vulnerable to pregnancy discrimination.”); Nora Ellmann & Jocelyn Frye, Efforts to Combat Pregnancy Discrimination: Confronting Racial, Ethnic, and Economic Bias, Ctr. for Am. Progress (Nov. 2, 2018), https://www.americanprogress.org/article/efforts-combat-pregnancy-discrimination/ [https://perma.cc/NJ6C-TS2Z] (“[B]lack or African American women filed 28.6 percent of pregnancy discrimination charges filed with the EEOC, despite making up 14.3 percent of the female labor force.”); Maryam Jameel & Joe Yerardi, Despite Legal Protections, Most Workers Who Face Discrimination Are on Their Own, Ctr. for Pub. Integrity (Feb. 28, 2019), https://publicintegrity.org/inequality-poverty-opportunity/workers-rights/workplace-inequities/injustice-at work/workplace discrimination-cases/ [https://perma.cc/MEH5-B5YP] (“Race claims are among the most commonly filed [with the EEOC] and have the lowest rate of success, with just fifteen percent receiving some form of relief.”). Black women, specifically, report a disproportionately high percentage of all workplace pregnancy-discrimination cases. 8 See McCann & Tomaskovic-Devey, supra note 1, at 11–12 (“[Black women] account for 14% of the female labor force but file 37% of pregnancy discrimination charges.”).

The COVID-19 pandemic has exacerbated these disparities. The economic burden on pregnant workers—especially pregnant workers of color—has been particularly heavy. 9 See Dina Bakst, Elizabeth Gedmark, Sarah Brafman & Meghan Racklin, A Better Balance, Long Overdue: The Pregnant Workers Fairness Act Is a Critical Measure to Remove Barriers to Women’s Workplace Participation and Promote Healthy Pregnancies 4, 8–9 (2021), https://www.abetterbalance.org/wp-content/uploads/2021/06/Long-Overdue-June-2021-Update-Final-1.pdf [https://perma.cc/KT6Q-L8N6] (noting that the COVID-19 pandemic has disproportionately harmed pregnant workers of color, who have “exited the workforce in droves”); see also Sarah A. Donovan & Marc Labonte, Cong. Rsch. Serv., R46632, The COVID-19 Pandemic: Labor Market Implications for Women 3 (2020) (“[W]orking mothers living in states that were the first to close schools were considerably more likely to be absent from work than those in late closure states, but no such effect was observed for working fathers or for women without school age children.”). In 2021, at the height of the pandemic, the ten most common occupations for pregnant workers aligned almost exactly with the CDC’s categories of “essential worker” occupations. 10 Compare Morgan Harwood & Sarah David Heydemann, Nat’l Women’s L. Ctr., By the Numbers: Where Do Pregnant Women Work? 2 (2019), https://nwlc.org/wp-content/uploads/2019/08/Pregnant-Workers-by-the-Numbers-v3-1.pdf [https://perma.cc/UY78-9S5M] (listing the ten most common occupations for pregnant workers, which include school teachers, nurses, service workers, and retail workers), with Interim List of Categories of Essential Workers Mapped to Standardized Industry Codes and Titles, CDC, https://www.cdc.gov/vaccines/covid-19/categories-essential-workers.html [https://perma.cc/JHM4-UUA2] (last updated Mar. 29, 2021) (listing many of these same occupations as “essential workers”). As a result, pregnant workers are simultaneously exposed to some of the most difficult working conditions in the pandemic and pushed out of the workforce in a time of particular need. Losing a job during a pandemic—especially for no reason or an unjust reason—is uniquely damaging. Job termination has been called the “‘capital punishment’ of employment relations” because of the profound impact it has on both an individual’s economic health and their sense of self and belonging. 11 Donna E. Young, Racial Releases, Involuntary Separations, and Employment At-Will, 34 Loy. L.A. L. Rev. 351, 352 (2001) (quoting Mark A. Rothstein & Lance Liebman, Employment Law: Cases and Materials 910 (4th ed. 1998)). Stronger protections are therefore necessary, especially for pregnant people, to prevent the devastating consequences that come with losing a job.

Most workers in the United States are terminable “at will,” meaning an employer does not need a reason to fire someone and can even offer an arbitrary or unjust reason, unless that reason is discriminatory. 12 See infra section I.A. But Congress has seen fit to protect military servicemembers and veterans from this standard at-will regime. 13 See infra section I.C. Current and former military servicemembers who return to their civilian jobs are terminable from those positions only for “just cause.” This Note argues that pregnant and postpartum people require the same protection. Although “just cause” has differing definitions, it generally means that an employer cannot fire an employee without providing a good reason for dismissal. 14 See, e.g., Roger I. Abrams & Dennis R. Nolan, Toward a Theory of “Just Cause” in Employee Discipline Cases, 1985 Duke L.J. 594, 601 (“Just cause . . . embodies the idea that the employee is entitled to continued employment, provided he attends work regularly, obeys work rules, performs at some reasonable level of quality and quantity, and refrains from interfering with his employer’s business by his activities on or off the job.”); Wendi J. Delmendo, Determining Just Cause: An Equitable Solution for the Workplace, 66 Wash. L. Rev. 831, 837–39 (1991) (describing the “fair and honest cause or reason” definition of just cause and noting its limitations); Morris D. Forkosch, The Doctrine of Just Cause, 1 Lab. L. J. 789, 790 (1950) (explaining the history of the just cause doctrine in depth and noting that the doctrine suggests that an “intentional interference” with an employee’s rights results in injury, giving rise to a prima facie case); Richard D. Himberger, Unjust Discharge: Why Nonunion Employees Need a Just Cause Statute, 25 Willamette L. Rev. 135, 150 (1989) (“[J]ust cause statutes in countries outside of the United States prohibit termination unless a valid, relevant reason exists concerning either a worker’s capacity or conduct, or the employer’s operational requirements.”). This Note advocates for an amendment to the Pregnancy Discrimination Act (PDA) 15 42 U.S.C. § 2000e(k) (2018). to give pregnant and postpartum workers just cause protection, modeled after the Uniformed Services Employment and Reemployment Rights Act (USERRA). 16 38 U.S.C. § 4316 (2018).

This Note starts by examining the at-will default and explaining why just cause, like the type used in USERRA, is preferable. It explains the current protections for pregnant and postpartum workers, concluding that they are lacking. The Note then compares cases under the PDA and USERRA, showing how the PDA’s legal framework fails to properly protect pregnant and postpartum people and how much better USERRA plaintiffs fare. Finally, it argues that pregnant and postpartum workers are substantially similar to veteran workers such that policymakers can extend just cause protection to pregnant and postpartum workers using USERRA as a model.

Many scholars have written about the need for just cause protection for either a subset of workers or for all American workers. However, they have not explored extending just cause protection for pregnant and postpartum workers specifically. Nor have they considered modeling such protection after USERRA. While broader protections for a larger group would no doubt be preferable, pregnant and postpartum workers are particularly vulnerable and need protection more urgently. 17 See infra section II.B. There is also a uniquely strong political appetite for legislation specific to pregnant workers in the current moment, reflected by the recent passage of the Pregnant Workers Fairness Act, which goes into effect in June 2023 and requires employers to provide reasonable accommodations for pregnant workers. 18 Pregnant Workers Fairness Act, H.R. 1065, 117th Cong. (2022) (enacted); see also What You Should Know About the Pregnant Workers Fairness Act, EEOC, https://www.eeoc.gov/wysk/what-you-should-know-about-pregnant-workers-fairness-act [https://perma.cc/886Y-6XRM] (last visited Mar. 5, 2023) (“The PWFA goes into effect on June 27, 2023.”). The solution that this Note advocates for is also narrower and thus more palatable than wholesale just cause reform, making it easier to enact. Since the USERRA model already exists in federal law, this Note’s solution would be easier to implement than a completely new policy proposal. This reform would therefore aid policymakers in their long-term advocacy for greater protections for vulnerable workers. USERRA’s just cause provision has received little attention in academic literature, making it a ripe area for exploration in reimagining employment discrimination legal frameworks. The solution this Note presents would help prevent arbitrary dismissals of pregnant and postpartum workers and close the power gap between them and their employers, making a fairer legal landscape through which pregnant and postpartum workers can litigate their discrimination claims.