Nearly 70% of women today work during their pregnancies,
and 85% of working women will become mothers at some point in their careers.
Pregnant workers continue to work further along in their pregnancies than their mothers and grandmothers did.
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.
Pregnant and postpartum workers are often seen as unreliable, unavailable, and bad for business.
Even a simple request for maternity leave can cause an employer to dismiss an otherwise good employee.
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.
Black women, specifically, report a disproportionately high percentage of all workplace pregnancy-discrimination cases.
The COVID-19 pandemic has exacerbated these disparities. The economic burden on pregnant workers—especially pregnant workers of color—has been particularly heavy.
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.
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.
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.
But Congress has seen fit to protect military servicemembers and veterans from this standard at-will regime.
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.
This Note advocates for an amendment to the Pregnancy Discrimination Act (PDA)
to give pregnant and postpartum workers just cause protection, modeled after the Uniformed Services Employment and Reemployment Rights Act (USERRA).
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.
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.
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.