The Pregnancy Penalty

Abstract

Using the findings generated by this first empirical overview of pregnancy in the labor market, this Article will argue that remedying pregnancy discrimination must become a more urgent priority for civil rights advocates and scholars. Pregnant women remain among the most vulnerable workers in the labor market, even in the presence of two federal laws allegedly available, but insufficient, to protect them. Although this Article is hardly the first to point out the inadequacy of legal protections for pregnant women, it is unique in its approach to the solution. In the absence of other available evidence, prior scholars have been forced to rely on litigated cases to suggest a solution; I rely on data. Using the BRFSS data, I demonstrate why the solution favored by most scholars, the Pregnant Workers Fairness Act (PWFA), is unlikely to be effective. Instead, I argue that paid family leave, available before and after childbirth, offers the better solution. Indeed, because paid family leave is already mandated in a handful of states, I use data from these states to demonstrate how a well-crafted family leave law can ameliorate the pregnancy penalty.

In making these arguments, this Article proceeds as follows: Part I begins by considering the different components of pregnancy that may produce discriminatory behaviors among employers, and Part II reviews the current legal protections against pregnancy discrimination at the federal level. Part III introduces the data and methodology necessary for this study, which is used in Part IV to examine pregnancy discrimination empirically.